Local Government

Editor:
Paul Martin, Esquire

Missouri Constitution requires public employers to establish procedural framework for collective bargaining with public employees. Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Springfield, No. 95564 and v. City of Chesterfield, No. 95366 (Mo. App. E.D., May 3, 2011), Ahrens, J.

In both cases, a majority of police officers and sergeants signed interest cards supporting the certification of the union. Each city refused to recognize the union and to establish a procedural framework for collective bargaining. The union filed suit, asking the courts to declare that the cities had an affirmative constitutional obligation to establish a collective bargaining framework. The trial court granted judgment to the union, and the cities appealed.

In separate but duplicative opinions, the Eastern District found that the union had standing to sue and that, in the absence of a statutory framework, the cities had an affirmative obligation under Mo. Const. Art. I, Section 29 and Independence-NEA v. Independence School Dist., 223 S.W.3d 131 (Mo. banc 2007), to establish a collective bargaining framework for public employees. The Eastern District rejected the argument that court intervention violated the separation of powers doctrine, because: (1) in the absence of court action, the constitutional collective bargaining guarantee for public employees would be unenforceable and meaningless, and (2) the trial courts' directives to each city were not to establish a specific framework but merely to create the mechanism, within each city's legislative discretion, to facilitate public collective bargaining. The Eastern District was careful to note that its decisions did not require the cities to reach any agreement through the collective bargaining nor did it permit strikes by public employees.

The Eastern District nonetheless determined that because the two cases presented questions of general interest and importance, they should be transferred to the Missouri Supreme Court for consideration.

Held:  Affirmed.

County collector's alleged extension of a sewer lateral repair fee to properties outside the scope of the enabling legislation and the voters' approval did not constitute a violation of the Hancock Amendment; plaintiffs were required to comply with Section 139.031 RSMo.'s tax protest and refund procedure. Adams v. Friganza, No. 95374 (Mo. App. E.D., May 3, 2011), Sullivan, P.J.

Plaintiff taxpayers brought a class action suit against St. Louis County, its collector, and 32 St. Louis County municipalities, which had contracted with the collector for the collection of their sewer lateral repair services fee. Sections 249.422 and 249.423, RSMo permitted: (1) the levy of the fee by the County and the municipalities against certain residential properties, after voter approval, and (2) the delegation of the collection responsibility to the collector through real estate tax bills. The collector allegedly extended the fee to properties not contemplated by the statute or the voters' approval. Plaintiffs claimed this extension constituted a fee not approved by the voters and a consequent violation of the Hancock Amendment. Plaintiffs sought class certification, a declaratory judgment, and damages. The defendants moved to dismiss based on lack of standing, a failure to comply with Section 139.031 RSMo (tax refund statute), and the failure to state a Hancock claim, and the trial court agreed. 

Held: Affirmed.
The Eastern District held that the sewer lateral fees had been approved by the respective jurisdictions' voters and that the levies of the fees were constitutional. The court held that the alleged improper collection of the tax did not constitute a Hancock violation by the taxing jurisdictions and that the plaintiffs were required to pursue their refund remedy through Section 139.031 (payment under protest followed by recovery action). Since they had not pleaded compliance with Section 139.031, they could not maintain the litigation. The court also found that the plaintiffs lacked standing to seek a remedy on behalf of other taxpayers, and it rejected the plaintiffs' argument that the County and the Collector had violated Hancock by collecting fees beyond the scope of the extant collection contracts. Finding that the Collector had no authority to levy, i.e., legislatively impose, the sewer lateral fee, but merely collected it, there was no constitutional violation and plaintiffs were confined to the Section 139.031 remedy.

Note:
This editor represented the cities of Maryland Heights, Ellisville, Olivette, and Rock Hill in the defense of this case.

The Missouri Bar Courts Bulletin, 11-Jun