ROY L. RICHTER, Presiding Judge.
Jeff Brunner and Kimberly Moore (collectively, "Appellants"), on behalf of themselves and others similarly situated, appeal from the trial court's judgment sustaining the City of Arnold's and American Traffic Solutions, Inc.'s (collectively, "Respondents") separate and joint motions to dismiss. We reverse the trial court's dismissal of Appellants' Petition and remand the cause for further proceedings consistent with this opinion.
This is yet another challenge to the validity and constitutionality of a municipal ordinance governing what are commonly referred to as "red light camera enforcement systems," and we take another hike through a legal and, unfortunately, political minefield. See, generally, Smith v. City of St. Louis, 409 S.W.3d 404 (Mo.App. E.D.2013); Unverferth v. City of Florissant, 2013 WL 4813851 (Mo.App. E.D. Sept. 10, 2013); Ballard v. City of Creve Coeur, 419 S.W.3d 109 (Mo.App.E.D.2013); Edwards v. City of Ellisville, 426 S.W.3d 644, 2013 WL 5913628 (Mo.App. E.D. Nov. 5, 2013).
On July 27, 2006, the City of Arnold ("City") enacted Ordinance No. 2.2 (Bill No. 2176) ("the Ordinance"), codified as City of Arnold, Missouri, Code of Ordinances ("Arnold Code") §§ 23-181 through 23-187. The Ordinance authorizes the installation and operation of an automated red light enforcement system in City "for the purpose of enforcing traffic control signal regulations as provided in section 23-173."
To implement and operate City's red light camera enforcement system created by the Ordinance, City contracted with American Traffic Solutions, Inc. ("ATS").
While ATS is responsible for the installation and operation of the red light camera enforcement system, the City Police Department is "responsible for the enforcement and administration" of the Ordinance, and is required to review the photographs generated by the automated red light enforcement system. Arnold Code § 23-184(a)-(b). Upon determining an Ordinance violation, the City Police Department is afforded the capacity to use any "legal means" to unearth any additional information necessary to complete the violation notice, in accordance with Missouri Supreme Court Rule 37 ("Notice of Violation"). Arnold Code § 23-184(b). The City Police Department is then required to forward the Notice of Violation to the City Prosecutor, wherein "on his or her [City Prosecutor's] information and belief, concludes that a violation of section 23-173 was committed," the City Prosecutor is directed to complete the Notice of Violation and "file the information or complaint with the municipal court, subject to the requirements of Missouri Supreme Court Rule 37." Arnold Code § 23-184(c). The municipal court clerk then issues a summons to motorists charged with violating the Ordinance by mailing the Notice of Violation, the photographs generated by the automated red light enforcement system and a copy of the supplemental violation notice ("Supplemental Violation Notice").
The Ordinance creates a rebuttable presumption that the owner of the vehicle alleged to be in violation of Arnold Code § 23-173 "was the driver of the vehicle at the time and place the violation was captured" by the automated red light enforcement system. Arnold Code § 23-183. Upon a determination of guilt, the Ordinance provides for the imposition of a
Arnold Code § 23-187.
The recipient of the Notice of Violation (i.e., the owner of the vehicle) is informed that he or she may transfer liability to the individual responsible for driving the vehicle at the time of violation. City provides recipient/owner with an "Affidavit of Non-Responsibility" ("Affidavit") to complete if he or she was not the driver at the time of the violation. The Affidavit requires the recipient/owner to provide the name and address of the actual driver. After completion
If the recipient of the Notice of Violation elects to pay the fine, the recipient may satisfy payment by mailing a check to the Arnold Municipal Court or may pay through ATS's website.
In September 2010, Jeff Brunner ("Brunner") received a Notice of Violation for allegedly running a red light in City as detected by the automated red light enforcement system. The Notice of Violation (and Supplemental Notice of Violation) provided Brunner with information regarding his alleged Ordinance violation, the images generated by the automated red light enforcement system, a statement that said images "will be submitted as evidence" in municipal court, instructions on the "Transfer of Liability"
In October 2010, Kimberly Moore ("Moore") received a Notice of Violation for allegedly running a red light in City as detected by the automated red light enforcement system. Moore's Notice of Violation was identical to that of Brunner's Notice of Violation. However, unlike Brunner, Moore never paid the $94.50 "penalty (fine)."
In September 2011, Appellants filed an amended class action petition ("Petition") challenging the Ordinance on numerous grounds. The Petition includes two subclasses of plaintiffs. Subclass 1, consisting of Brunner and others similarly situated, received a Notice of Violation pursuant to the Ordinance and paid the "penalty (fine)" without municipal court proceedings ("Subclass 1"). Subclass 2, consisting of Moore and others similarly situated, received a Notice of Violation but have not paid the "penalty (fine)," elected to forgo municipal court proceedings, and currently face potential prosecution ("Subclass 2"). Appellants' seven-count, purported class
In Count I, all Appellants seek a declaratory judgment that the Ordinance is contrary to numerous Missouri statutes and/or the Missouri Constitution. Specifically, Appellants dispute the validity and constitutionality of the Ordinance and seek a declaratory judgment on:
In Count II, Brunner and Subclass 1 allege unjust enrichment against City because the Ordinance is void, invalid and/or unconstitutional. Therefore, Brunner and Subclass 1 seek a return (restitution) of their fines and penalties paid to City and all legal and equitable remedies available.
In Count III, all Appellants seek all legal and equitable remedies available for City's alleged violation of Article I, Section 19 of the Missouri Constitution, which prohibits self-incrimination. Appellants aver that the Ordinance compels the accused to testify by sworn statement or appearance in municipal court.
In Count IV, all Appellants seek all legal and equitable remedies available for City's 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. Appellants claim that the Ordinance authorizes a taking of property and potential imprisonment without due process of law by establishing an unreasonable presumption of guilt and shifting the burden of proof.
In Count V, all Appellants seek legal damages available for Respondents' "civil conspiracy" to generate revenue illegally. For support, Appellants assert, inter alia, that Respondents "knew and discussed" the probability of the Ordinance's unconstitutionality and invalidity.
In Count VII, all Appellants seek all legal damages available for Respondents' alleged fraud perpetrated by Respondents in enacting, enforcing, and marketing the Ordinance.
Respondents filed joint and separate motions to dismiss. The trial court sustained Respondents' motions and dismissed all of Appellants' claims with prejudice, but without detailed explanation. It is from this judgment Appellants now appeal.
We will provide additional facts, where relevant, in the course of our discussion.
Appellants raise five points on appeal.
The points relied on and the arguments presented by the litigants will be addressed in greater detail within our analysis.
This Court's review of a trial court's judgment granting a motion to dismiss is de novo. Stein v. Novus Equities Co., 284 S.W.3d 597, 601 (Mo.App. E.D. 2009). Since the trial court did not state its reasons for sustaining the motion to dismiss, we may affirm the trial court's dismissal on any ground before the trial court in the motion to dismiss, even if the trial court relied on other grounds in dismissing
"A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings." Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App. W.D.2003). When this Court reviews the dismissal of a petition for failure to state a claim, we treat all averments alleged in the petition as true and liberally grant the plaintiff all reasonable inferences therefrom. Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002); see also Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App. E.D.2009) ("When we consider whether a petition fails to state a claim upon which relief can be granted, we accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and we construe all allegations favorably to the pleader."). We neither weigh nor determine the credibility or persuasiveness of the factual allegations, but, instead, review the petition in an almost academic manner "to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Chochorowski, 295 S.W.3d at 197 (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)). "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).
Standing is a threshold question which must be addressed prior to the merits of a litigant's claim, because if a party lacks standing a court has no jurisdiction to grant the relief requested and the case must be dismissed. Miller v. City of Arnold, 254 S.W.3d 249, 252 (Mo.App. E.D. 2008); see also State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 n. 6 (Mo. banc 1982) (standing is considered "a jurisdictional matter antecedent to the right of relief."). As such, we begin by addressing the issues emanating from Appellants' fourth point on appeal: standing, waiver, and estoppel.
Respondents argued in their motions to dismiss and now on appeal that Appellants are barred from bringing Count I of the Petition (declaratory judgment action challenging the validity and constitutionality of the Ordinance on numerous statutory and constitutional grounds), Count III of the Petition (the Ordinance violates Article I, Section 19 of the Missouri Constitution, which prohibits compelling a defendant to testify), and Count IV of the Petition (the Ordinance violates Article I, Section 10 of the Missouri Constitution, which prohibits deprivation of "life, liberty or property without due process of law") because Appellants lack standing, have waived their constitutional claims, and/or Appellants are estopped from bringing said claims. Appellants claim the trial court erred in dismissing the Petition, because Appellants have standing, have not waived their constitutional claims, and are not estopped from bringing these claims.
As many of the litigants' arguments commingle these three different legal principles — standing, waiver, and estoppel — we address these issues individually to facilitate comprehension.
"Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote." Ste. Genevieve Sch. Dist. R II v. Bd. of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). Simply, standing seeks to discover whether the individual requesting
To successfully assert standing, an individual must have a "legally protectable interest." St. Louis Ass'n of Realtors v. City of Ferguson, 354 S.W.3d 620, 623 (Mo. banc 2011). "A legally protectable interest exists only if the plaintiff is affected directly and adversely by the challenged action or if the plaintiff's interest is conferred statutorily." Id. In Missouri, "[a]ny party who alleges they are directly adversely affected by an ordinance may raise the question of the unconstitutionality or invalidity of the ordinance." State ex rel. City of St. Louis v. Litz, 653 S.W.2d 703, 706 (Mo.App. E.D.1983). An individual seeking to challenge the validity of an ordinance has standing if standing "is conferred by statute or another applicable ordinance or if the party can demonstrate that he [or she] is directly and adversely affected by the ordinance." City of Bridgeton v. Ford Motor Credit Co., 788 S.W.2d 285, 290 (Mo. banc 1990); see, e.g., Dae v. City of St. Louis, 596 S.W.2d 454, 455 (Mo.App. E.D.1980) (holding that two appellants had standing to challenge the validity of an ordinance because those two appellants had been charged with violation of the ordinance).
On appeal and in their joint and separate motions to dismiss, Respondents contend (1) Brunner lacks standing to pursue his claim that the Ordinance conflicts with state law because he did not claim any harm as a result of the alleged conflict, and (2) Brunner lacks standing to pursue his challenge as to the constitutionality of the Ordinance because Brunner elected not to avail himself of the procedures
Respondents claim Brunner lacks standing to pursue his claim that the Ordinance conflicts with state law because he was not adversely affected by the Ordinance. We find Brunner has established standing to pursue his claim that the Ordinance conflicts with state law, pursuant to Count I of the Petition, in two ways.
First, the Petition adequately pleads that Brunner was directly affected by the Ordinance. See City of Bridgeton, supra. The allegations in the Petition include Brunner's receipt of a Notice of Violation and his deprivation of property in the form of a $94.50 fine/penalty:
Our decision finding Brunner has standing is reinforced by the decisions in recent analogous cases. In both Unverferth and Edwards, those individuals who had received a notice of violation pursuant to similar red light camera enforcement system ordinances, paid the fines to avoid further legal action (without participating in municipal court proceedings), and, finally, continued to pursue their challenges as to whether the red light camera ordinances conflicted with state law were held to have standing because they were adversely affected by the ordinances at issue. Unverferth, 419 S.W.3d at 86; Edwards, 426 S.W.3d at 652-54, 2013 WL 5913628, at
Just as the litigants in Unverferth and Edwards, Brunner received a Notice of Violation pursuant to the Ordinance and paid a $94.50 fine to avoid further legal action (i.e., a warrant for Brunner's arrest). Brunner and Subclass 1 are, therefore, held to have standing to challenge the validity of the Ordinance under Count I of the Petition. See, e.g., Unverferth, 419 S.W.3d at 86; Edwards, 426 S.W.3d at 652-54, 2013 WL 5913628, at *4-*5.
Second, in Count I of the Petition, Brunner seeks declaratory relief pursuant to Section 527.020. The Declaratory Judgment Act, in pertinent part, provides:
Section 527.020 (emphasis added). Accordingly, standing is also conferred by the plain language of the statute under which Count I of the Petition is brought. See Miller v. City of Manchester, 834 S.W.2d 904, 906 (Mo.App. E.D.1992).
Therefore, we hold that Brunner has standing to pursue his claim that the Ordinance conflicts with state law.
Next, Respondents argue Brunner lacks standing to pursue his challenge as to the constitutionality of the Ordinance because he did not avail himself of the procedures afforded by the Ordinance, in that Brunner did not contest the Ordinance in Arnold Municipal Court, but merely paid the $94.50 penalty.
First, we note that Appellants do not raise constitutional due process arguments regarding any alleged deficiencies of the Notices of Violation so received. Thus, Unverferth offers Appellants little support, in that in Unverferth, the plaintiff was found to have standing to pursue her constitutional challenge (even though the plaintiff did not avail herself to the procedures in municipal court) because the plaintiff's due process arguments were not "limited to an attack on the procedures by which [the plaintiff] could challenge the Notice of Violation." Unverferth, 419 S.W.3d at 87. The Unverferth plaintiff's due process violations encompassed the inadequacies relating to her notice of violation. Id. Here, because Appellants do not challenge any alleged due process violations relating to their Notices of Violation, no standing is conferred upon Brunner under the holding of Unverferth. Id.
In this Court's most recent red light camera case, we held that the City of Ellisville's red light camera ordinance ("Ellisville Ordinance") conflicted with state law for three reasons:
Because this Court found that the Ellisville Ordinance conflicted with state law, we held "[a]s a matter of law, this conflict renders the [Ellisville] Ordinance void and unenforceable." Id. (emphasis added); see also City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 35 (Mo.App. E.D. 1979) ("The law in this state is that an ordinance which contravenes the statutes of Missouri is void."). Likewise, as discussed, infra, we too find this Ordinance — which is similar to that of the Ellisville Ordinance — void and unenforceable. Edwards, 426 S.W.3d at 661-55, 2013 WL 5913628, at *13-*17.
"The effect of the ordinance being in violation of the state statute is that the ordinance is `void and unenforceable ab initio.'" Levinson v. City of Kansas City, 43 S.W.3d 312, 320 (Mo.App. W.D.2001) (quoting Armco Steel v. City of Kansas City, 883 S.W.2d 3, 7 (Mo. banc 1994)). Thus, "a void ordinance is equivalent to none at all[,]" thereby rendering all court proceedings transpiring under said ordinance void as well. City of St. Louis v. Handlan, 242 Mo. 88, 145 S.W. 421, 423-24 (1912) ("avoid ordinance is equivalent to none at all; and that where a court proceeding cannot go on without an ordinance... a valid one is essential to the court's jurisdiction.") (emphasis added) (the Supreme Court of Missouri could not reach other points on appeal because the ordinance was invalid). Therefore, a municipal court — having jurisdiction only to try violations of municipal ordinances and not state law — has no subject matter jurisdiction, ab initio, pursuant to a void and unenforceable ordinance that conflicts with state law. Williams v. Williams, 932 S.W.2d 904, 905 (Mo.App. E.D.1996) ("A judgment is void from its inception if the court that rendered judgment did not have jurisdiction."); Section 479.020.1 (municipal courts have jurisdiction only to try violation of
Therefore, finding the Arnold Municipal Court lacked subject matter jurisdiction over the void and unenforceable Ordinance, we hold that Brunner was not required to subject himself to invalid procedures in municipal court and the judgment (i.e., admission of guilt by a paying fine) rendered therein is void. Taylor v. Taylor, 47 S.W.3d 377, 385 (Mo.App. W.D. 2001) ("A judgment is void if the court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.") (citations and internal quotation marks omitted); see also State ex rel. Rhine v. Montgomery, 422 S.W.2d 661, 663 (Mo.App.1967) ("A void judgment is entitled to no consideration and any kind of proceeding to cancel it is proper.") (internal citations omitted) (emphasis added); Van Harken v. City of Chicago, 305 Ill.App.3d 972, 239 Ill.Dec. 223, 713 N.E.2d 754, 758 (1999) ("if the complaint attacks the constitutionality of a statute or ordinance on its face, the plaintiff need not exhaust all of his administrative remedies before seeking judicial relief"). After Brunner's Ordinance violation had been filed in Arnold Municipal Court, that municipal court should have dismissed the action for lack of subject matter jurisdiction, sua sponte. Mo. Const. Art. V, Section 14; Bacon v. Dir. of Revenue, State of Mo., 948 S.W.2d 266, 267 (Mo.App. E.D. 1997) ("When a court lacks subject matter jurisdiction, it cannot take any other action besides its inherent power to dismiss. Furthermore, any action taken by a court lacking subject matter jurisdiction is null and void.") (internal citations omitted) (emphasis added).
Furthermore, unlike Edwards, we find Arnold has enacted an unconstitutional Ordinance, as more fully examined, infra. An ordinance that a municipality has no power to enact is an act of usurpation and all proceedings under it are void. 6 McQuillin Mun. Corp. § 20:14 (3d ed.). Accordingly, Brunner was not required to subject himself to void and unconstitutional proceedings in municipal court, and, therefore, has standing to challenge the constitutionality of the ordinance in circuit court, although he did not avail himself of the procedures in Arnold Municipal Court.
We hold that Brunner has standing to pursue his claim that the Ordinance conflicts with state law.
On appeal and in their joint and separate motions to dismiss, Respondents contend Moore cannot state a claim for declaratory and injunctive relief because Moore has an adequate remedy at law by way of a municipal court proceeding. Appellants argue the trial court erred in dismissing Moore's claims for declaratory and injunctive relief, pursuant to Counts I, III and IV of the Petition, because no adequate remedy at law exists under which Moore could bring her claims. We agree with Appellants and reverse the trial court's dismissal.
As discussed, supra, under our analysis of Brunner's standing and by our holding in Edwards, we determined that the municipal court lacked subject matter jurisdiction to institute judicial proceedings under the void and unenforceable Ordinance. Thus, the presence of an adequate remedy at law is immaterial where a court patently and unambiguously lacks jurisdiction to act. Accordingly, Moore and Subclass 2, need not subject themselves to municipal court proceedings for an alleged violation of a void and unenforceable municipal ordinance because "equity will enjoin the enforcement of an invalid ordinance to protect the individual citizen from multiple prosecutions, or to prevent irreparable harm to his [or her] property rights...." Browning v. City of Poplar Bluff 370 S.W.2d 179, 183 (Mo.App. 1963) (emphasis added); see also Home Shopping Club, Inc. v. Roberts Broadcasting Co., 989 S.W.2d 174, 180 (Mo.App. E.D.1998) (an injunction is an equitable remedy); Estate of Cantonia v. Sindel, 684 S.W.2d 592, 595 (Mo.App. E.D.1985) ("when concurrent jurisdiction exists, i.e. law and equity, equitable principles can be invoked despite the existence of an adequate remedy at law").
Finding Moore has no adequate remedy at law, we, therefore, hold that Moore has standing to pursue her claims for declaratory and injunctive relief delineated in Counts I, III and IV of the Petition; see also Damon, 419 S.W.3d at 176-77 (finding standing for those plaintiffs who had not yet paid the fine and never partook in municipal court proceedings, in part, because ATS would not have been a party in municipal court).
Appellants next challenge the trial court's finding that Brunner waived his constitutional due process claims because he did not assert such claims at the municipal court proceedings to which he was entitled.
In order to prevent surprise to the opposing party and to permit the trial court the opportunity to adequately and fairly address constitutional claims, Willits v. Peabody Coal Co., LLC, 400 S.W.3d 442, 449 (Mo.App. E.D.2013) (citing Land Clearance for Redevelopment Auth. of Kansas City, Mo. v. Kansas Univ. Endowment Ass'n, 805 S.W.2d 173, 175 (Mo. banc 1991)), it is firmly established that a constitutional question must be presented at the earliest possible moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived. MB Town Center, LP v. Clayton Forsyth Foods, Inc., 364 S.W.3d 595 (Mo.App. E.D.2012). Constitutional violations not raised at the earliest possible opportunity are deemed waived. State ex rel York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998).
In applying the directive of Daugherty, we consider whether Brunner had a "reasonable opportunity" to raise his constitutional claims before a "court of law." See, Unverferth, 419 S.W.3d at 88. Because we have found that Arnold Municipal Court lacked subject matter jurisdiction, Brunner possessed no opportunity to present his constitutional claims before any court of law until this action was filed in the Circuit Court of Jefferson County. Daugherty, 969 S.W.2d at 225 ("One exception to the waiver doctrine usually noted is where there was a lack of subject matter jurisdiction in the forum where the waiver occurred.")
Unverferth and Smith offer no assistance to Appellants as it was held in those cases that the doctrine of waiver did not preclude the plaintiffs, who had paid their fines in municipal court (without availing themselves to the proceedings in municipal court) because the deficient notices of violation deprived the plaintiffs of a reasonable opportunity to raise the constitutionality of the ordinances in municipal court. Unverferth, 419 S.W.3d at 88; Smith, 409 S.W.3d at 412-13; see also Damon, 419 S.W.3d at 177. Here, as aforementioned, Appellants did not challenge any deficiencies in the Notices of Violation.
In Edwards, a very similar case, those plaintiffs who had paid the fine without availing themselves to the procedures in municipal court and whose notices of violation were not deficient, were held to have
Therefore, Appellants are not deemed to have waived their challenge as to the constitutionality of the Ordinance because they were never presented with an opportunity to so do.
Finally, Respondents also argued in their separate and joint motions to dismiss and now on appeal that Brunner should be estopped from bringing his claims, advanced in Counts I, III and IV of the Petition, because he accepted his conviction upon payment of the fine without subjecting himself to the municipal court proceedings or a trial de novo.
In support of their argument that Brunner should now be estopped from asserting his constitutional claims, Respondents primarily rely upon State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998), which in turns relies upon Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935 (1928). We believe a discussion of both cases is required.
In Tremayne, a property owner ("Owner") brought a tort action for consequential damages ("Tort Action") against the City of St. Louis ("City") for damages alleged to have been caused by the grading of a street upon which the Owner's property abutted. Tremayne, 6 S.W.2d at 936. Prior to the commencement of the Tort Action, the City commenced, and the parties had adjudicated, a condemnation suit to change the grade of the street. Id. In the condemnation proceeding, the court found "special benefits" (i.e., Owner had benefited, rather than being damaged from the grading of the street) in a certain dollar amount, which Owner subsequently paid. Id. Owner never sought appellate review from that condemnation proceeding. Id. In the Tort Action, Owner argued that the grading of the street occurred prior to the final judgment of the condemnation proceeding, and, thus, Owner should be entitled to damages sounding in tort. Id. The City argued Owner's action was res judicata and the amount paid by Owner was not subject to collateral attack. Id. at 937.
The Supreme Court of Missouri found that Owner should have brought his action sounding in tort in the condemnation suit, because Owner had notice of the hearing, paid the judgment levied, and took no appeal. Id. at 944. Accordingly, Owner was "estopped from denying the validity of such [condemnation suit] judgment" because he "acquiesced in the judgment by paying the same." Id. at 946. In so holding, the Supreme Court further stated:
Id. (quoting Mohler v. Shank's Estate, 93 Iowa 273, 61 N.W. 981, 984 (Iowa 1895) (quoting in part Freeman on Judgments § 117 (4th ed. 1892))).
Seventy years later, in Daugherty, the Missouri Supreme Court held that estoppel precluded former spouses from challenging, as unconstitutional, a "judgment" of dissolution of marriage solely because a family court commissioner had signed it, in that the former spouses failed to utilize the statutory procedures available for judicial review. Daugherty, 969 S.W.2d at 224-25. In so holding, that court noted that the estoppel doctrine is applicable even to a void judgment when a party accepts both the "burdens and benefits" of that void judgment. Id. at 225. To support its holding, the Supreme Court relied upon and quoted the aforementioned language from Tremayne. Id.; see also Matter of Tapp's Estate, 569 S.W.2d 281, 285 (Mo. App.1978) ("One who has accepted and retained the benefits of a judgment (or decree) is estopped to deny, on any ground, the validity thereof, or any part thereof, or any of its burdensome consequences, even where the invalidity arises from want of jurisdiction over the person or over the subject matter.").
Recently, this Court, in Edwards, relied upon Daugherty and Tremayne to apply the estoppel doctrine in order to preclude plaintiffs from asserting their constitutional claims, because those plaintiffs did not challenge any deficiencies with their notices of violation, "had clear options, were informed of those options, and could have raised their constitutional claims" in municipal court. Edwards, 426 S.W.3d at 655-57, 2013 WL 5913628, at *7-*8. Accordingly, this Court estopped the plaintiffs in Edwards from bringing their constitutional claims because they paid the fine and chose not to raise such claims in municipal court. Id. at 656-57, 2013 WL 5913628, at *8.
However, in Kubley v. Brooks, 141 S.W.3d 21 (Mo. banc 2004), the Missouri Supreme Court limited the purview of Daugherty (and, thereby, Tremayne) by holding that subject matter jurisdiction cannot be conferred by estoppel "[e]xcept in unusual circumstances." Id. at 28 (emphasis added). For example, such "unusual circumstances" exist so as to estop a litigant from contesting subject matter jurisdiction where the parties accept the benefits of a judgment of dissolution entered by a commissioner rather than a judge. Id. (citing Daugherty, 969 S.W.2d at 223-25).
Even after considering Tremayne, Daugherty, Edwards and Freeman on Judgments, this Court concludes they are not controlling in this case. First, we find no "unusual circumstances" so as to apply estoppel because we see no "benefits" flowing to Brunner by paying the $94.50 fine/penalty. See, e.g., In re Marriage of Boston, 104 S.W.3d 825, 831 n. 8 (Mo.App. S.D.2003) (finding husband was not estopped from challenging void decree because husband did not receive any benefits
Further, Freeman on Judgments does not call for applying estoppel in this situation: "[j]udgments by confession are in nowise exempt from the rule applicable to other judgments, that to be valid they must be entered in a court having jurisdiction over the subject matter of the action and the parties thereto." Freeman of Judgments § 1309 (5th ed.1925). In fact, contrary to Respondents' claim that equity should estop Appellants from asserting their constitutional claims, Freeman encourages a court's liberal exercise of its equitable jurisdiction for the opposite reason — equity should be employed over judgments entered by confession so that a defendant may "make a defense on the merits." Id. at § 1340.
Considering the myriad of due process and other constitutional issues at stake in this case, public policy would be ill-served in estopping Brunner from raising such issues where Brunner's alleged violation of the Ordinance was not litigated on the merits. See, e.g., State v. Wilson, 5 S.W.3d 527, 529 (Mo.App. E.D.1999) (distinguishing Daugherty by noting that trial in a court without jurisdiction deprives a defendant of due process). As the doctrine of estoppel is one of equity, "it must be applied to do equity and must not be applied in such a manner as to violate principles of right and good conscience." Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631, 638 (1941) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 323, 56 S.Ct. 466, 80 L.Ed. 688 (1936)); see also Restatement (Second) of Judgments § 12, cmt. a (1982) ("As long as the possibility exists of making error in a determination of the question of subject matter jurisdiction, the principles of finality and validity cannot be perfectly accommodated. Questions of subject matter jurisdiction must be justiciable if the legal rules governing competency are to be given effect; some tribunal must determine them, either the court in which the action is commenced or some other court of referral. If the question is decided erroneously, and a judgment is allowed to stand in the face of the fact that the court lacked subject matter jurisdiction, then the principle of validity is compromised."). Equity would not be served by estopping Brunner from bringing his constitutional claims, but equity will be served in permitting Brunner to now assert his constitutional claims.
Therefore, all Appellants have standing, have not waived, and are not estopped from bringing their claims set forth in Counts I, III and IV of the Petition. Appellants' Point IV on appeal is, hereby, granted.
Appellants directly challenge the validity and/or the constitutionality of the Ordinance through three different avenues: (1) the Ordinance is invalid and unconstitutional because City lacked authority to enact the Ordinance; (2) the Ordinance is invalid because the Ordinance conflicts with state law; and (3) the Ordinance is invalid and unconstitutional because the Ordinance violates Appellants' constitutional rights of due process. As such, before delving into the details of the claims advanced by the litigants, we being our analysis with a review of key principles relating to municipal corporations and their powers.
Generally, ordinances are presumed to be "valid and lawful" and are construed in such a manner as to uphold its validity "unless the ordinance is expressly inconsistent or in irreconcilable conflict with the general law of the state." McCollum v. Dir. of Revenue, 906 S.W.2d 368, 369 (Mo. banc 1995) (emphasis added). However, ordinances imposing penalties are "strictly construed" against the municipality and will not be extended by implication. City of Kansas City v. Heather, 273 S.W.3d 592, 595 (Mo.App. W.D.2009). There being a "fine (penalty)" imposed for violation of the Ordinance, we will strictly construe the Ordinance against the municipality. See, e.g., City of St. Louis v. Brune Mgmt. Co., 391 S.W.2d 943, 946 (Mo.App. 1965) (because violation of housing ordinance was a misdemeanor and subjected violator to a fine, the ordinance was penal in nature and, therefore, strictly construed).
A municipal corporation, such as the City of Arnold, organized under the statutes of this state (specifically, third-class cities pursuant to Section 77.010), is a creature of the legislature. Anderson v. City of Olivette, 518 S.W.2d 34, 39 (Mo. 1975). Accordingly, like all creatures of this state, City's power to enact ordinances is derived from the state and must be exercised under that authority so given by the state. City of Arnold v. Tourkakis, 249 S.W.3d 202, 205 (Mo. banc 2008) ("A non-charter city, such as Arnold, derives its power from the legislature's enactment of laws."). "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and none others:" those powers expressly granted, those powers necessarily and fairly implied in or incidental to powers expressly granted, and those powers essential to the declared objects and purposes — "not simply convenient, but indispensable" — of the municipal corporation. City of Richmond Heights v. Shackelford, 446 S.W.2d 179, 180 (Mo.App.1969) (citations omitted). Courts will adhere to a "strict rule of construction" when determining the powers of a municipality and any reasonable doubt as to whether a power has been so delegated to a municipality will be resolved in favor of non-delegation. Burks v. City of Licking, 980 S.W.2d 109, 111 (Mo.App. S.D.1998); City of Kirkwood, 589 S.W.2d at 35-36.
An ordinance adopted and enacted by a municipal corporation must be consistent and in harmony with, and not in contravention of state law on the same subject. Shackelford, 446 S.W.2d at 180; see also Section 71.010 (a municipal corporation
With these basic principles of municipal law in mind, we proceed to the arguments.
To begin, Appellants argue that Arnold lacked authority to enact the Ordinance for three reasons: (1) the Ordinance was not validly enacted pursuant to City's statutory grant of authority provided by Section 304.120 because the Ordinance is in conflict with state law, not in conformity with state law upon the same subject, and is not an "additional rule of the road;" (2) the Ordinance was not validly enacted pursuant to City's police power because the Ordinance has no "substantial and rational relationship to the health, safety, peace, comfort and general welfare" of its citizens and is therefore unconstitutional; and (3) the Ordinance was not validly enacted because it was enacted solely for generating revenue (Appellants' Point II).
First, Appellants contend the Ordinance was not validly enacted pursuant to a legitimate exercise of City's statutory authority.
Pursuant to Section 304.120, the legislature has granted municipalities, including City, the power to "[m]ake additional rules of the road or traffic regulations to meet their needs and traffic conditions" so long as the municipality enacts ordinances consistent with and not in conflict with state law. Section 304.120.2(1); Section 304.120.3; see also Smith, 409 S.W.3d at 425. Here, Appellants have pled that City has exceeded its statutory grant of authority under Section 304.120 by enacting the Ordinance, because the Ordinance is not an "additional" rule of the road or traffic regulation enacted to regulate new, supplemental or separate conduct.
We follow the reasoning set forth in Unverferth and Damon. In both of those cases, the courts found that the ordinances did qualify as an additional traffic regulation under Section 304.120 although the ordinances addressed conduct already regulated under another provision of law. Unverferth, 419 S.W.3d at 94; Damon, 419 S.W.3d at 183 ("An ordinance delineating an enforcement mechanism falls within the statute's purview of meeting a municipality's `needs and traffic conditions.'").
We recognize that the use of technology as a means of police enforcement will inevitably continue to increase. As demonstrated by the Missouri Court of Appeals' series of cases relating to red light cameras, we are uncertain as to whether the birth of automated traffic enforcement was envisioned by our Missouri Legislature. Compared with other technological advancements utilized by police (e.g., radar guns), the use of automated traffic enforcement systems do not result in an immediate interaction with a human police officer. Cf. Smith, 409 S.W.3d at 427 (questioning whether automated red light enforcement systems "fundamentally" differ from radar guns). We are bound by the plain language of the statute as written and have a duty to construe and apply the laws as written and any argument as to the alleged unfairness of construction or lack of statutory guidance should be addressed to the legislative and executive branches of government. Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011) ("If the intent of the legislature is clear and unambiguous, by giving the language used in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction
Therefore, the Ordinance was a valid exercise of City's statutory grant of authority.
Next, Appellants argue that even if the Ordinance was appropriately enacted pursuant to Section 304.120, the Ordinance was in violation of City's "police power," in that the Ordinance has no "substantial and rational relationship to the health, safety, peace, comfort and general welfare" of its citizens. Specifically, Appellants allege that the Ordinance circumvents Section 302.225, governing the assessment and reporting of points on drivers' licenses for moving violations,
"Police power is the power inherent in government to enact laws, within constitutional limits, to promote order, safety, health, morals, and general welfare of society." Engelage v. City of Warrenton, 378 S.W.3d 410, 414 (Mo.App. E.D. 2012) (citations and quotation marks omitted). However, in Missouri, it is a well-settled principle of local government law that a city has no inherent police power, but, rather, a municipal corporation's authority to exercise certain police powers must originate from a specific delegation by the state. City of Lake Lotawana v. Meagher, 581 S.W.2d 105, 106 (Mo.App. W.D.1979) (quoting Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 (1949)); see also Lewis v. City of Univ. City, 145 S.W.3d 25, 32 (Mo.App. E.D. 2004) ("Missouri law requires a city's authority to exercise police power to derive from a specific delegation by the state or from the express or fairly implied grant of powers of a city's charter."). Here, the specific statutory delegation of police powers to municipalities of the third-class, such as City, is found in Sections 77.260 and 77.590. See Section 77.260 (City, via the municipality's mayor and council, has been afforded the power to "enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they shall deem expedient and for the good government of the city, the preservation of peace and good order, ... and the health of the inhabitants thereof...."); see also Section 77.590. The legislature has delegated statutory grants of authority permitting Arnold to exercise general police powers and pass ordinances for the health and safety of its citizens. Miller v. City of Town & Country, 62 S.W.3d 431, 437 (Mo.App. E.D.2001).
Despite a municipality's authority to enact ordinances pursuant to its broad police power, "the police power is not unlimited and cannot lessen constitutional protections." Damon, 419 S.W.3d at 184 (citing City of Kansas City v. Jordan, 174 S.W.3d 25, 40 (Mo.App. W.D.2005)). A municipal ordinance will be considered a legitimate exercise of police power "if the expressed requirements of the ordinance bear a substantial and rational relationship
Recently, this Court held that reducing the dangerousness of intersections by targeting vehicles that violate existing traffic regulations is rationally and substantially related to health, safety, peace, comfort, and general welfare of the public, and is a valid exercise of a municipality's police power. Smith, 409 S.W.3d at 425-26. In relying upon this proposition espoused in Smith, Unverferth held that the plain language of a red light camera ordinance which targeted vehicles violating existing traffic regulations (i.e., vehicles running red lights) was "on its face ... rationally related to public safety." Unverferth, 419 S.W.3d at 95.
Like Unverferth, Arnold's Ordinance also targets those vehicles running a red light. See Arnold Code § 23-182 (the Ordinance authorizes the installation and operation of an automated red light enforcement system in Arnold "for the purpose of enforcing traffic control signal regulations as provided in section 23-173."). However, unlike Unverferth, here, Appellants posited numerous facts in their Petition which call into question whether the Ordinance was reasonable because the Ordinance does not actually promote public safety. For example, Appellants aver, inter alia, the following reasons the Ordinance does not reasonably promote public safety:
Moreover, Appellants contend that the Ordinance was unreasonable because there exist numerous other methods — as proven by studies — City had available to decrease red light violations, promote the general welfare of citizens, and increase safety. Such methods include the use of roundabouts and the timing of lights. All of these are factors in determining the reasonableness of the Ordinance. See President Riverboat Casino-Mo., Inc. v. Mo. Gaming Comm'n, 13 S.W.3d 635, 641 (Mo. banc 2000) ("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.").
Additionally, we believe there are questions regarding whether Arnold contracted or surrendered its governmental functions (i.e., prosecuting violations of municipal ordinances). Joseph v. Marriott Intern., Inc., 967 S.W.2d 624, 627 (Mo.App. W.D. 1998) ("A city cannot surrender or contract away its governmental functions."). While the City Police Department and City Prosecutor, at first, determine whether a violation has occurred, the Notice of Violation explicitly directs the recipient to mail his or her Affidavit transferring liability to ATS in Arizona. This gives the impression that ATS, a non-governmental entity and for-profit company, has the power to determine whether the prosecution should proceed. Violators are also permitted to remit the fine to ATS via ATS's website. On remand, discovery shall be permitted on this topic.
Because we do not weigh or determine the credibility or persuasiveness of the factual allegations on appeal from a motion to dismiss, but rather, "we accept all properly pleaded facts as true, giving the pleadings their broadest intendment and we construe the allegations favorably to the pleader[,]" Chochorowski, 295 S.W.3d at 197, we find Appellants' allegations are sufficient to survive Respondents' motions to dismiss. See, e.g., Damon, 419 S.W.3d at 185; cf. Unverferth, 419 S.W.3d at 103. This opinion should not be read as holding that a municipality cannot exercise its police power to enact red light camera enforcement systems, but, only that, here, Appellants' averments require further judicial proceedings as to whether the Ordinance was reasonably in accordance with City's police powers. See, e.g., Glenn v. City of Grant City, 69 S.W.3d 126 (Mo. App. W.D.2002).
We remand to the trial court to determine whether the Ordinance was validly enacted pursuant to City's police power, and instruct the trial court to permit discovery on this issue.
Appellants further contend that the purpose of the ordinance was not for the general welfare of the people, but enacted for the sole purpose of generating revenue.
In Automobile Club of Missouri v. City of St. Louis, 334 S.W.2d 355 (Mo.1960), the Missouri Supreme Court noted that an ordinance enacted pursuant to a municipality's
The courts in Unverferth, Ballard, Edwards, and Damon held that the plaintiffs had raised allegations sufficient to survive a motion to dismiss, relating to whether the municipalities or cities had enacted their red light camera ordinances for the overriding purpose of generating revenue, and not to promote traffic safety. Unverferth, 419 S.W.3d at 103; Ballard, 419 S.W.3d at 122-23; Edwards, 426 S.W.3d at 660-62, 2013 WL 5913628, at *12-*13; Damon, 419 S.W.3d at 185.
Likewise, there are sufficient allegations that City enacted the Ordinance for revenue-generating purposes, not the promotion of traffic safety. As did the couple in Aesop's Fable, Arnold seems to have killed the "elusive goose that lays the golden egg,[,]" Smith, 409 S.W.3d at 427, for the primary and fundamental purpose of the Ordinance seems to be just that — profit. Profit for Arnold and profit for ATS. See, e.g., City of Davenport v. Seymour, 755 N.W.2d 533, 548 (Iowa 2008) (Wiggins, J., dissenting) ("The legislature never envisioned that municipalities could raise revenue under the guise of traffic law enforcement at the expense of safer highways."). There are multiple allegations that question if the Ordinance's overriding purpose was for the generation of revenue:
The answer to each of these allegations would seem to favor generation of revenue as the primary purpose of the Ordinance. When the primary and fundamental purpose of an ordinance is revenue-generation, such ordinance cannot stand.
In the absence of the Legislature
Like the preceding cases, we remand to the trial court for a determination regarding the purpose of the enactment of the Ordinance, and instruct the trial court to permit discovery on this issue.
As to Appellants' Point II, we reverse and remand the trial court's judgment and instruct the trial court to permit discovery regarding whether the Ordinance was validly enacted pursuant to City's police power and whether generating revenue was the overriding purpose behind the enactment of the Ordinance.
Second, Appellants contend that the Ordinance is invalid because the Ordinance directly conflicts and is contrary to state law in two ways: (1) the Ordinance conflicts with Section 304.281, a Missouri statute governing traffic signal violations; and (2) the Ordinance conflicts with Sections 302.225, a Missouri statute governing the assessment of points on drivers' licenses for moving violations (Appellants' Point I).
In Missouri, because "[a] municipality derives its governmental powers from the state and exercises generally only such governmental functions as are expressly or impliedly granted it by the state[,]" Century 21-Mabel O. Pettus, Inc. v. City of Jennings, 700 S.W.2d 809, 811 (Mo. banc 1985), "[a] municipal ordinance must be in harmony with the general laws of the state and is void if in conflict." City
Appellants first argue that the Ordinance conflicts with or is contrary to Section 304.281, the state statute governing traffic signal violations. Specifically, Appellants allege that Section 304.281 only applies to "drivers of vehicles and pedestrians," not owners of the vehicles. We disagree.
Unverferth is directly on point. See Unverferth, 419 S.W.3d at 98-99. In Unverferth, the red light camera ordinance prescribed a violation of said ordinance "when such person fails to comply with the rules and regulations when a steady red signal appears at an intersection and the violation is detected though the automated red light enforcement system...." Id. at 84. The Unverferth plaintiffs offered an identical argument as the plaintiffs in the case in bar to substantiate an alleged conflict with Section 304.281 — Section 304.281 only applies to drivers of vehicles and pedestrians, not owners of the vehicles. Id. at 98-99. This court determined that the Unverferth plaintiffs' argument failed "because like the state statute, the Ordinance makes it unlawful for drivers, not owners, to run a red light[,]" in that the ordinance allowed for the owner to produce evidence that he or she was not driving the vehicle at the time of the violation either by affidavit or under oath at a municipal court proceeding. Id.
Similarly, the Arnold Ordinance prohibits a vehicle from entering an intersection when a steady red signal appears at the intersection. Arnold Code § 23-182, with reference to § 23-173. Furthermore, the Ordinance allows the owner of the vehicle to proffer evidence that he or she was not driving the vehicle at the time of the violation by affidavit, on a form provided by Arnold, or under oath at municipal court proceedings. Arnold Code § 23-186(a)(8). Included in the Notices of Violation mailed to Appellants was a form furnished by City informing Appellants of these procedures. Clearly, the Ordinance regulates the same conduct prescribed in Section 304.281, but the Ordinance is valid and enforceable because the Ordinance's provisions do not conflict with state law. See, e.g., Unverferth, 419 S.W.3d at 98-99; Cf. Edwards, 426 S.W.3d at 662-64, 2013 WL 5913628, at *15-*16 (ordinance conflicts with Section 304.281 because ordinance imposes the rules regarding traffic signals on owners,
Therefore, like Unverferth, we find that Ordinance does not conflict with Section 304.281.
Next, Appellants contend that the Ordinance directly conflicts with state statutes governing the reporting requirements and assessment of points for moving violations. Appellants argue that any violation of the Ordinance constitutes a moving violation as defined by state statute, yet Arnold has ostensibly (without explicitly acknowledging) classified violations of the Ordinance as non-moving infractions in that points are expressly prohibited from being assessed against the violator. Arnold Code § 23-187 ("Except that no points will be assigned to the violators [sic] drivers license when guilty of an automated red light enforcement violation."). We agree with Appellants that the Ordinance conflicts with state law.
Section 302.225 requires that courts report any moving violation offenses to the Department of Revenue within seven days of any plea or finding of guilty. See Section 302.225.1. Section 302.010(13) plainly defines a "moving violation" as the "character of traffic violation where at the time of violation the motor vehicle involved is in motion[.]" 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. Edwards, 426 S.W.3d at 663-64, 2013 WL 5913628, at *16. Thus, "the plain language of Missouri state law requires any municipal ordinance violation occurring while the vehicle is in motion be assessed two points by the director of revenue." Unverferth, 419 S.W.3d at 97.
Here, the Ordinance makes no explicit statement to characterize the conduct as a non-moving violation, but, indeed, that is Arnold's intention. The Ordinance explicitly states that no points will be assessed against the violator's license. Arnold Code § 23-187. However, under the plain language of the Ordinance, a person commits an Ordinance violation when he or she violates Section 23-173 of the Arnold Code, which prohibits a vehicle facing a steady red light from entering an intersection. See Arnold Code §§ 23-182, 23-184(a), and 23-173.
As in Unverferth, Edwards, and Damon, "the conduct regulated by the Ordinance is, quite simply and unambiguously, running a red light[,]" as "[c]ommon sense and collective experience suggest that a person cannot fail to stop at a red light without being in motion." Unverferth, 419 S.W.3d at 98; Edwards, 426 S.W.3d at 664, 2013 WL 5913628, at *17; Damon, 419 S.W.3d at 187; see also City of Springfield v. Belt, 307 S.W.3d 649, 652 (Mo. banc 2010) ("a violation of a red light ordinance, which typically is considered a moving violation"). In so doing, Arnold "permits what the state law prohibits — the classification of running a red light as a non-moving violation free from the assessment of points." Unverferth, 419 S.W.3d at 98; Edwards, 426 S.W.3d at 664, 2013 WL 5913628, at *17 (determining that an ordinance conflicts with statutes related to assessment of points where red-light ordinance "fail[ed] to require the municipal court to report a violation of the Ordinance as a moving violation to the director of revenue for the assessment of points"); Damon, 419 S.W.3d at 187. When is running a red light not the same as running a red light? Arnold believes it is when the violation is captured by a red light camera. Arnold is incorrect.
Third, Appellants argue that the Ordinance is unconstitutional and invalid because it deprives Appellants of their due process rights as provided by the Missouri Constitution. Specifically, Appellants allege that the Ordinance's rebuttable presumption violates their rights to due process, pursuant to Article I, Section 10 of the Missouri Constitution, because the rebuttable presumption is unconstitutional and in violation with state law in that it expands the liability for red light violators to the vehicle owners who were not driving at the time of violation (component of Appellants' Point II) and, additionally, deprives Appellants of their right to be heard in a meaningful way in that the Ordinance impermissibly shifts the burden of proof onto the accused (Appellants' Point III).
To combat Appellants' averments, Respondents argue that the rebuttable presumption does not expand the liability for red light violations because the use of rebuttable presumptions is clearly permitted under Missouri case law as established by City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468 (1949). Further, Respondents argue that the rebuttable presumption does not impermissibly shift the burden of proof onto the accused because rebuttable presumptions shift the burden of evidence, not the burden of proof.
Initially, because the crux of Appellants' arguments is contingent upon the validity and constitutionality of the rebuttable presumption, we set forth the rebuttable presumption prescribed by the Ordinance:
Arnold Code § 23-183.
To properly dispose of this issue, we are called upon to determine if rebuttable presumptions are valid and whether the Ordinance is criminal in nature.
Clearly, the Ordinance "explicitly presume[s] that the ownership of the vehicle is conflatable with driving the vehicle at a given time." Wrong on Red: The Constitutional Case Against Red-Light Cameras, 32 Wash. U.J.L. & Pol'y at 463. While "rebuttable in name, this presumption is conclusive in practice." Id.; see also Unverferth, 419 S.W.3d at 109 (Mooney, J., dissenting in part) ("Given the context in which it operates, Florissant did all in its power to render the rebuttable presumption conclusive."); Kellogg v. Murphy, 349 Mo. 1165, 164 S.W.2d 285, 294 (1942) ("It is conceded everywhere that a presumption of fact cannot be made conclusive except by entering the field of substantive law."). However, Respondents contend that rebuttable presumptions are permissible under Missouri precedent.
In City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468 (1949), a defendant was prosecuted under a city ordinance establishing it to be an offense to park a
While calling into question the need for such a presumption in light of technological advancements, Unverferth, in relying upon Cook, held that "such a presumption has long been established in Missouri[,]" and that courts could not disregard Missouri Supreme Court precedent. Unverferth, 419 S.W.3d at 99-100.
Conversely, Damon distinguished Cook on the basis that Cook's holding "was dependent on the rationale that the presumption must have some `relation to or natural connection with the fact to be inferred.'" Damon, 419 S.W.3d at 189 (quoting Cook, 221 S.W.2d at 470). Accordingly, Damon limited the standard applied in Cook to only those cases where the ordinance (and the proceedings springing therefrom) is civil. Damon, 419 S.W.3d at 191. Thus, ordinances which are quasi-criminal require the trial court to examine if there is a rational connection between the facts proved and the ultimate fact presumed, whereas the rebuttable presumption is invalid when an ordinance is determined to be criminal in nature. Id.
We agree with and adopt Damon's interpretation of Cook and elect not to extend Cook beyond the prosecution of parking violations. Unverferth, 419 S.W.3d at 108-09 (Mooney, J., dissenting in part). An ordinance that is criminal in nature cannot create a rebuttable presumption as this would infringe upon a fundamental canon and procedure of this country's and this state's criminal justice system: an accused is deemed innocent until proven guilty. See State v. Neal, 526 S.W.2d 898, 902 (Mo.App.1975) ("There is no question that the accused in a criminal proceeding is presumed innocent until proven guilty."); see, e.g., Damon, 419 S.W.3d at 189-91; State v. Kuhlman, 729 N.W.2d 577, 583-84 (Minn.2007).
Under Missouri law, municipal ordinance violations are considered civil actions, while prosecutions of municipal ordinances are "quasi-criminal in nature" because the rules of criminal procedure apply. City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo.App. E.D.1990); see also City of Stanberry v. O'Neal, 166 Mo.App. 709, 150 S.W. 1104, 1105 (1912) ("Thus it has been ruled, time and again, by the Supreme Court, that such cases are quasi criminal, which is no less than saying that they are like criminal cases in many
It is indisputable that Arnold must prove beyond a reasonable doubt that the owner of the vehicle was driving at the time of the offense. Damon, 419 S.W.3d at 188 (citing City of Kansas City v. McGary, 218 S.W.3d 449, 452 (Mo.App. W.D.2006)); see also City of Ash Grove v. Christian, 949 S.W.2d 259, 261 (Mo.App. S.D.1997). The constitutionality and validity of the rebuttable presumption prescribed by the Ordinance hinges upon whether the Ordinance is civil or criminal nature because "[a] presumption is analyzed differently depending on whether the context is criminal or civil." Damon, 419 S.W.3d at 188 (citing Ulster Cnty. Court v. Allen, 442 U.S. 140, 142, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)) (detailing the difference between a rebuttable presumption in a civil context versus a criminal context).
Previously, this Court outlined several factors to consider for determining whether an automated traffic ordinance is civil in nature:
City of Creve Coeur v. Nottebrok, 356 S.W.3d 252, 257-58 (Mo.App. E.D.2011); see also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). These factors do not uniformly weigh in favor of finding an ordinance is criminal or civil in nature, but the balance of factors weigh in favor of finding a civil or criminal nature.
Damon, an analogous case from the Missouri Court of Appeals, Western District, recognized these factors but found that the determination of whether a red light camera ordinance was civil or criminal in nature was not appropriate for review on appeal from a motion to dismiss. Damon, 419 S.W.3d at 188-91. As such, the court avoided analyses of the factors, and remanded the case to the trial court for a determination as to whether the red light camera ordinance was civil or criminal in nature. Id. at 188-91.
We find no further evidence is necessary to determine whether the Ordinance is civil or criminal in nature because, as a matter of law, through a plain reading of
In the instant case, it can hardly be said that the ordinance was civil in nature. The Ordinance does not include any language indicating the legislative body's preference for a civil label. In fact, we find no language even by reference as to Arnold's intent to use civil enforcement of the Ordinance. However, there is significant evidence indicating the criminal nature of the Ordinance. The Ordinance's Notice of Violation indicates that payment is "admission of guilt or liability" and includes the threat of a warrant for failure to dispose of the matter. Hudson v. U.S., 522 U.S. 93, 104, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (an affirmative disability or restraint is one approaching the "infamous punishment of imprisonment"). Regardless of the capability of Arnold to legally arrest non-payers, the threat of imprisonment is sufficient to conclude that Arnold believed or intended the Ordinance to be criminal, in that Arnold imposes an affirmative disability or restraint on violators. While we agree that the intent of the Ordinance was not to punish violators via imprisonment, Arnold has acted as if the Ordinance was criminal in nature, presumably to coerce violators into paying the fine. Arnold may not use the Ordinance as a weapon and then ask to be shielded by the Ordinance. Moreover, because of the threat of imprisonment, the Ordinance imposes an additional penalty.
These factors tip the scale in favor of a finding that the Ordinance is, indeed, criminal in nature. Because we find the Ordinance criminal in nature, we hold that the Ordinance is unconstitutional insomuch as it creates a rebuttable presumption. Damon, 419 S.W.3d at 187-91. Finding the Ordinance unconstitutional because of the criminal nature of the Ordinance and the Ordinance's rebuttable presumption, the Ordinance, thereby, violates the rights afforded by Appellants' Article I, Section 10 of the Missouri Constitution, which prohibits the deprivation of life, liberty, or property without due process.
We grant Appellants' Point III.
Finally, in Appellants' Point V on appeal, Brunner argues that the trial court erred in dismissing his claims for unjust enrichment against both City (Count II of the Petition) and ATS (Count VI of the Petition) because he properly pled the elements to support that cause of action, Respondents have no immunity, and Appellants' claims are not barred by the voluntary payment doctrine. We affirm in part, and reverse and remand in part.
"An unjust enrichment has occurred where a benefit was conferred upon a person in circumstances in which the retention of the benefit, without paying its reasonable value, would be unjust." S & J, Inc. v. McLoud & Co. LLC, 108 S.W.3d 765, 768 (Mo.App. S.D.2003). To properly and sufficiently establish a claim for unjust enrichment, the plaintiff must prove three elements: (1) the defendant was enriched by the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and (3) that it would be unjust to allow the defendant to retain the benefit. Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo.App. W.D.2010).
Appellants contend the voluntary payment doctrine should not apply because the Ordinance was void and unconstitutional, and, thus, Brunner paid the fine/penalty under a "mistake of fact." However, as has already been determined, Appellants' mistake was one of law, and a "mistake of law" is no defense to the voluntary payment doctrine. See, e.g., Ballard, 419 S.W.3d at 123, 2013 WL 5458971, at *12; Unverferth, 419 S.W.3d at 106-07.
We believe this argument deserves more analysis. Among other things, Appellants cite to an appellate court decision from Illinois for the proposition that an individual who paid a fine deriving from a void ordinance should be permitted to recover that fine:
Johnston v. City of Bloomington, 61 Ill.App.3d 209, 18 Ill.Dec. 538, 377 N.E.2d 1174, 1177-78 (1978) (reversed on other grounds without reaching this point).
The Appellate Court of Illinois delivered a persuasive and extremely rational articulation as to the quagmire created by permitting restitution for a "mistake of fact" but not for a "mistake of law." However, under current law in Missouri, a "mistake of law" is no defense to the voluntary payment doctrine and even the Illinois court found that payment under an ordinance later declared void is still a "mistake of law."
As addressed in the five prior red light camera cases (all addressing unjust enrichment claims), we too confront the issue regarding the sufficiency of "duress" necessary to preclude the use of the voluntary payment doctrine. Huch v. Charter Communications, Inc., 290 S.W.3d 721, 726 (Mo. banc 2009) ("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 money."). In the four cases emerging from this Court, the plaintiffs' claims for unjust enrichment were denied because the voluntary payment doctrine applied and the plaintiffs were not under duress. Smith, 409 S.W.3d at 418-21; Unverferth, 419 S.W.3d at 106-07; Ballard, 419 S.W.3d at 123-24; Edwards, 426 S.W.3d at 665-68, 2013 WL 5913628, at *18-*20. Conversely, our colleagues in the Western District found the plaintiffs' claims for unjust enrichment survived under
In Unverferth, the plaintiff received a notice of violation with a threat of arrest or imprisonment if she did not pay her fine or appear in municipal court. Unverferth, 419 S.W.3d at 107. This Court, however, found that "Missouri courts do not recognize the threat of legitimate legal process as duress because the party threatened is entitled to plead and prove that he is not liable." Id. Accordingly, this Court affirmed the trial court's dismissal of the plaintiff's claims for unjust enrichment because the city "was entitled to pursue legal action" if the plaintiff did not pay the fine or appear in municipal court. Id.
In Damon, the plaintiff also received a notice of violation with a threat of arrest or imprisonment if he did not pay his fine or appear in municipal court. Damon, 419 S.W.3d at 192-93. The Western District held, while distinguishing Unverferth, that "taking the allegations in this action and all reasonable inferences as true, which our standard of review commands, here we know of no authority indicating that City was entitled to pursue legal action[.]" Id. at 193. Furthermore, that court referenced an opinion by Missouri legal counsel provided to ATS indicating that the enactment of the ordinance was invalid and the possibility that the city and ATS engaged in an unscrupulous business venture. Id.
We agree with Unverferth, and hold that the trial court appropriately dismissed Appellants' claim for unjust enrichment as against Arnold. Nevertheless, we agree with Damon, in that we hold that the trial court erred in dismissing Appellants' claim for unjust enrichment as against ATS.
There is little dispute as to the first two elements of unjust enrichment regarding ATS's collection — and profit — of the fines/penalties. However, the third element of unjust enrichment — the injustice of retaining the benefit — "is the most significant and, indeed, is the most difficult of all the elements to apply." Assoc. Eng'g Co. v. Webbe, 795 S.W.2d 606, 608 (Mo. App. E.D.1990). As previously stated, supra, we believe a plethora of questions remain regarding whether City contracted or surrendered its governmental functions (i.e., prosecuting violations of municipal ordinances). Joseph v. Marriott Intern., Inc., 967 S.W.2d 624, 627 (Mo.App. W.D. 1998) ("A city cannot surrender or contract away its governmental functions."). If City did surrender its governmental functions, then it is possible it would be unjust to permit ATS to retain the fines/penalties so collected.
As to Appellants' Point V, the trial court's judgment is affirmed in part (Count
We hold the trial court erred in dismissing the claims of both Appellants, and the respective subclasses they purport to represent, based upon standing, waiver and estoppel, and the argument that Moore had an adequate remedy at law. As to Count I of the Petition, we hold that the Ordinance is invalid on the ground that it conflicts with state law and is therefore void and unenforceable.
With regard to Appellants' claims that the Ordinance is invalid and/or unconstitutional because City exceeded its police power in enacting the Ordinance and enacted the Ordinance solely for revenue generation, we reverse the trial court's judgment dismissing Count I of the Petition. We remand these issues for further proceedings consistent with this opinion, including, inter alia, discovery related to these issues, as well as for determining whether ATS has been unjustly enriched.
In regards to Appellants' due process claims, we reverse the trial court's judgment dismissing Counts I, III and IV of the Petition and hold that the Ordinance is unconstitutional, insomuch as it is criminal in nature and creates a rebuttable presumption.
Finally, as to Appellants' claims for unjust enrichment, we affirm in part and reverse and remand in part with instructions. We affirm the trial court's judgment dismissing Appellants' claims for unjust enrichment as against City under Count II of the Petition. We reverse and remand the dismissal of Appellants' claims for unjust enrichment as against ATS under Count VI of the Petition, and instruct the trial court to permit discovery, inter alia, on the issue as to whether City contracted or surrendered its governmental powers to ATS.
CLIFFORD H. AHRENS, J., concurs.
KURT S. ODENWALD, J., concurs.
Left unanswered are those questions regarding vehicles that are owned and/or registered to governmental entities, business entities, trusts, or other owners who are not "natural persons." Does Arnold prosecute these "not natural person" owners? To what address is the Notice of Violation sent? How do these "not natural person" owners transfer liability? Who is responsible for payment? Furthermore, when the vehicle is registered to joint owners, why is the Notice of Violation only mailed to one of the joint owners? Why is only one joint owner liable?
