W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

In 2000, the Missouri General Assembly adopted Senate Bill 894. The title of the bill stated that it was an act to repeal 51 specified sections relating to property ownership and to enact in lieu thereof 70 new sections relating to the same subject. The trial court held that the bill violated the clear title requirement of the Missouri Constitution and the Supreme Court affirmed in Home Builders Association of Greater St. Louis v. State of Missouri, No. SC 83863 (Mo. banc 2002).

Article III, Section 23 of the Missouri Constitution requires that no bill shall contain more than one subject which shall be clearly expressed in its title. The purpose of this "clear title" requirement is to prevent fraudulent, misleading and improper legislation by providing that the title indicate in a general way the kind of legislation that is being enacted. Requiring bill titles to be clear is thus a way of keeping individual members of the legislature and the public fairly apprised of the subject matter of pending laws. Titles to legislative enactments may violate Article III's "clear title" requirement in two ways: (a) the title is so restrictive and under-inclusive that some provisions of the bill fall outside its scope, and (b) the title is so broad and amorphous in scope that it fails to give notice of its content. Here, the title to the bill was so amorphous that it violated the clear title provisions of the Constitution. The title gives no guidance as to the contents of the bill. Moreover, in a case of an over-inclusive title, such as this one, the entire bill is invalid because the title's lack of notice as to the subject matter included in the bill applies to the bill as a whole.

Grandparent Visitation Rights Statute is Constitutional

Richard and Carol Blakely filed suit against their son Dean and his wife Shelly under Missouri's Grandparent Visitation Rights Statute, § 452.402 RSMo., seeking visitation of their four grandchildren. The parents opposed visitation by the grandparents because of religious differences. The grandparents testified that they had not talked to the grandchildren about religion and would not do so. The trial court granted the grandparents two hours of visitation with their grandchildren every 90 days. The parents were permitted to be present during the visits. The parents appealed, alleging that the statute is unconstitutional. The Supreme Court of Missouri found the statute to be constitutional in Blakely v. Blakely, No. SC 83307 (Mo. banc 2002).

The Missouri statute is fundamentally different from the statute that was disapproved in Troxel v. Granville, 530 U.S. 57 (2000). Missouri limits visitation to the grandparents of a child and also requires the grandparents to meet the threshold requirement of demonstrating that parents have unreasonably denied them visitation of their grandchildren for a period exceeding 90 days. Unlike Troxel, a grandparent does not have automatic standing to seek visitation. The Missouri statute places on the grandparents an onerous, but appropriate, burden of proving that the denial of visitation was unreasonable. Also, the Missouri statute does not simply leave the best interests issue to the unfettered discretion of the trial judge. Rather, it provides procedural safeguards to assist the judge in making the best interest determination, including a home study or for the appointment of a guardian ad litem. These features of Missouri's statute assist the court in determining whether the parents' decision as to visitation is unreasonable and avoid having the judge base an order on a mere disagreement.

Moreover, the statute does not discriminate against religious practices. The language of the statute in no way mentions or alludes to religion. There has been no showing that the statute was enacted with religious overtones. Any effect of the statute on the parents' religious practices is minimal. The trial court order does not substantially intrude on the parents' religious practices; it was very narrowly drawn to accomplish only a minimal intrusion on the parental rights of the parents.

Courts Should Not Adjudicate Disputes Involving Religious Issues

Diane Witthaus was the principal of the elementary school at Immaculate Conception Catholic Parish in Montgomery City. Father Doyle, who was pastor of the Immaculate Conception Church, was reassigned by the diocese of Jefferson City to another community, but refused the assignment. Father Doyle remained in Montgomery City and lived in the basement of the home owned by Mr. & Mrs. Witthaus. Responding to concerns about the community and parish perception resulting from Father Doyle living in the basement of her house, the school board decided to not renew Mrs. Witthaus' contract for the upcoming school year. She appealed the non-renewal through the grievance procedures available within the Catholic Church's educational system. When her appeal was denied, she filed suit against the diocese and other church officials, seeking damages for defamation. The trial court denied summary judgment to the diocese, but the Court of Appeals granted a writ of prohibition that was made absolute in State of Missouri ex rel. Diocese of Jefferson City v. Blaeuer, No. W.D. 60120 (Mo. App. W.D. 2002).

Courts are reluctant to adjudicate disputes involving church matters. Courts intervene in intra-church disputes only when necessary if the dispute involves legal issues in which the state has a necessary interest. The First Amendment stands as a limitation on civil court jurisdiction over disputes that are either essentially religious in nature, or are sufficiently intertwined with church policy as to constitute a threat of entanglement with religious doctrine or practice. Courts may, however, exercise jurisdiction in disputes having no issues of religious doctrine, policy or practice so long as the court utilizes a neutral principles of law approach and does not become entangled in questions that are essentially religious.

Here, the allegedly defamatory statements were made in connection with the decisions of the church officials regarding the non-renewal of Mrs. Witthaus' contract and relate to matters within the religious cognizance of the diocese. Her purported defamation claims are inextricably intertwined with the church's non-renewal of her contract and her appeal of that decision was adjudicated through the process made available by the church. To allow her defamation claims to be litigated would permit civil court jurisdiction to enter the back door of the religious entity and allow judicial probing of church policy and procedure. It would permit judicial interference with the methods, values and practices of the diocese. To allow a defamation suit to be litigated in connection with the termination of a church officer would tend to have a chilling effect on the management of the religious entity.

Secured Creditor Must Plead and Prove Notice of Sale to Obtain Deficiency Judgment Against Debtor

Cub Cadet supplied outdoor power equipment to Mopec under a financing arrangement by which Cub Cadet held a security interest in the inventory of Mopec. After Mopec defaulted on its payments to Cub Cadet, Cub Cadet repossessed the inventory and sold it. Cub Cadet then filed suit to obtain a deficiency judgment against Mopec. Because Cub Cadet had not alleged in its petition that it gave notice to Mopec of the sale of the collateral, the evidence Cub Cadet offered on its notice of the sale was excluded. The trial court then denied Cub Cadet's recovery of a deficiency judgment against Mopec, which was affirmed in Cub Cadet Corp. v. Mopec, No. W.D. 59963 (Mo. App. W.D. 2002).

To recover a deficiency judgment, a secured creditor must comply with §§ 400.9-504 RSMo. That statute imposes a two-fold obligation upon a secured party. The first obligation requires a secured party to provide notice of the sale of collateral to the debtor so that the debtor may take whatever action it can to protect its interest, such as discharging the debt and reclaiming the collateral, finding another purchaser or assuring that any sale by the creditor is done in a commercially reasonable manner. The second obligation of the secured creditor is to sell the collateral in a reasonably commercial manner. This requirement is designed to encourage the creditor to seek the most advantageous sale price and thus reduce the possibility and amount of any deficiency. In a deficiency judgment action, the secured creditor is required to plead and prove that it has complied with the notice provision of § 400.9-504. A secured creditor's failure to plead and prove such notice bars it from recovery of a deficiency judgment.

If You Escape From Prison, Don't Ask For Your Paycheck

Randy Spencer was employed at Boyle's Famous Corned Beef Company through a work-release program with the Missouri Department of Corrections. One day, he escaped and did not return to the release center after work, as required. When he did not pick up his last paycheck, Boyle sent it to the release center, which posted it to his account. The release center then declared the money forfeited by Spencer because he was an escapee. After Spencer was apprehended and returned to the custody of the Missouri Department of Corrections, he filed suit against the release center seeking recovery of his paycheck. The trial court denied Spencer's claim and the Court of Appeals affirmed in Spencer v. Ouverson, No. W.D. 60109 (Mo. App. W.D. 2002).

Missouri courts have long recognized the "escape rule" to deny the right of appeal of a defendant who escapes justice. Although the escape rule has not been applied to a civil case, this case warrants its application. Had Spencer not decided to escape from the release center, he would have received his paycheck and the court system would have been spared this litigation. His decision to flaunt the justice system is the very cause for which he now seeks relief. If a criminal appeal can be dismissed because of a party's escape, it is certainly appropriate to dismiss a civil appeal of this kind when the litigation has been directly caused by an escape in the first place.

Mandamus Applies Only to the Performance of a Ministerial Act

Rhonda Mason submitted to the clerk of the Jackson County Legislature her declaration as a candidate for Jackson County legislator. The clerk rejected her declaration on the grounds that she had not been a qualified voter in Jackson County for three years immediately preceding the election, as required by the Jackson County Charter. Mason filed her petition in madamus to compel the Jackson County Legislature to receive her declaration of candidacy for the election and place her name on the ballot. She alleged that the three-year requirement for voter registration breaches the equal protection clause of the Fourteenth Amendment of the United States Constitution and Article I of the Missouri Constitution. Her action was dismissed in State of Missouri ex rel. Mason v. Jackson County Legislature, No. W.D. 61185 (Mo. App. W.D. 2002).

The purpose of mandamus is to execute and not to adjudicate. Mandamus is appropriate only when the right to be enforced is clear, unequivocal, specific and only then to require the performance of a ministerial duty. Adjudication of the Constitutional issues asserted by Mason in this mandamus action is inappropriate. Mandamus is not available to directly challenge and determine the validity and constitutionality of an ordinance or statute respecting the duty involved. Even though the election was imminent, that is not a reason to violate the well-established provisions of the law of mandamus and to embark on new and unwise precedent that would encourage expanded use of the extraordinary writ to adjudicate and decide issues of law. Mason attempted to utilize the writ for mandamus to adjudicate, rather than execute, and to establish rather than enforce her claimed rights. Mandamus is not the appropriate remedy to adjudicate constitutional claims.

Prevailing Wage Act is Remedial in Nature and Broadly Applied

Interstate Ready-Mix signed a purchase order to provide concrete to Fru-Con Construction Corp. for the construction of the South Central Correction Center in Licking. Ready-Mix leased property that was approximately one mile from the prison site and constructed a concrete batch plant on the leased property. Ready-Mix employees transported the concrete to the prison site, where it was installed by another contractor. Ready-Mix hired employees who worked at the batch plant and drove the concrete mixer trucks to the prison site. They were not paid the prevailing wage rate and filed suit against Ready-Mix seeking payment of prevailing wages. The trial court denied the employees' claims, but the Court of Appeals reversed in Long v. Interstate Ready-Mix, No. W.D. 60170 (Mo. App. W.D. 2002).

The Prevailing Wage Act was designed to ensure that workers on public projects be paid reasonable wages. Due to the remedial nature of the act, it is interpreted broadly so as to accomplish the greatest public good. Under the act, all workmen employed by private contractors in the construction of public works must be paid not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed. Workers who are directly employed by contractors or subcontractors in actual construction work on the site of the building, or construction job, shall be deemed to be employed on a public works project. Even though the Ready-Mix employees performed no actual construction work on the prison site, it is generally understood that work necessary for completion of a public project will "spill over" into nearby areas that are not occupied by the actual construction project. Courts in other states have defined the term "on-site" to cover not only the physical place where the construction occurs, but also nearby property that can be reasonably included in the site because of proximity. Because of the remedial nature of the act, its application is not limited to only those workers employed "directly" on the site.

Demolition Order For Garage Did Not Contain Findings Required by City Ordinance

Robert Woodson had a concrete block garage on his property. An inspector from the Kansas City Dangerous Building Division inspected the garage and issued an order that it be demolished because it was dangerous and was not economically feasible to rehabilitate. Woodson appealed the order to the Kansas City Property Maintenance Appeals Board. After the hearing, the board issued its findings affirming the demolition order. Woodson then appealed the board's order to the circuit court, which affirmed the board's decision. The Court of Appeals reversed, however, in Woodson v. City of Kansas City, No. W.D. 59773 (Mo. App. 2002).

In ordering the demolition of Woodson's garage, the city was exercising its police power. A city has no inherent police power; it only has such power expressly conferred by the state. Section 67.400 RSMo. authorizes cities to enact orders or ordinances to provide for vacation and demolition of buildings and structures that are detrimental to the health, safety or welfare of the residents and declared to be a public nuisance. Pursuant to that statute, Kansas City adopted ordinances dealing with dangerous buildings or structures. The Missouri statute was intended to satisfy due process requirements. Thus, the order to demolish Woodson's garage was required to contain findings of fact to show why the building was dangerous and should be demolished.

Here, the original demolition order issued by the city contained only a few conclusory findings and did not set forth the specific conditions or defects that made the garage dangerous. A demolition order must include written findings of fact setting forth the specific conditions or defects complained of and the extent to which they are detrimental to life, health, property, safety or welfare of the public. Because the original demolition order failed to make the requisite findings, the case is remanded back to the appeals board with directions to remand the case to the city Dangerous Building Division so that the findings required by the statute and ordinance can be made.

Variances Should Be Granted Only Under Exceptional Circumstances

Cousin's Advertising requested an outdoor advertising sign permit from the code director of the City of Kansas City. The code director determined that the sign violated the city ordinance that prohibited outdoor advertising signs within 150 feet of property with frontage upon the same street and that is zoned residential unless the sign, including its supporting structures, was not visible from adjoining or adjacent property. Cousin's Advertising appealed the director's determination to the Kansas City Board of Zoning Adjustment and, in an attempt to cover its bases, also filed an application for a variance. After a hearing on both matters, the board affirmed the code director's decision and denied Cousin's application for a variance by a vote that was 3-2 in favor of Cousin's Advertising. Cousin's Advertising's appeal failed, however, because four favorable votes are required in each instance under § 89.090 RSMo. Cousin's Advertising appealed to the circuit court, which upheld both decisions of the board. The Court of Appeals also affirmed the board's decision in Cousin's Advertising v. Board of Zoning Adjustment of Kansas City, No. W.D. 60241 (Mo. App. W.D. 2002).

In construing a city ordinance, the court applies the same rules that are used in construing a state statute. It is the fundamental rule of construing a statute that one part of the statute should not be read in isolation from the rest of the statute. Because a statute or ordinance is passed as a whole and not in parts or sections, each part shall be construed in connection with other parts and it is not proper to confine interpretation to the one section to be construed. Related clauses are to be considered when construing a particular portion of a statute or ordinance. Here, the code director's interpretation of the word "street" was not improper, especially since the interpretation placed upon a zoning ordinance by the governmental body responsible for its enactment and application is entitled to great weight.

Moreover, the denial of the variance request was appropriate. The authority to grant a variance should be exercised sparingly and only under exceptional circumstances. To carry its burden of establishing "practical difficulties," Cousins must show, at the very least, that as a practical matter, the property cannot be used for a permitted use without coming into conflict with certain of the ordinance restrictions. The "practical difficulty" standard refers to conditions of the land in question, and not to conditions personal to the owner of the land. In determining whether a practical difficulty warrants a variance in any particular case is a factual matter for the Board of Zoning Adjustment's resolution, which will be reversed only for an abuse of discretion. On appeal, the issue is not whether Cousins submitted substantial and competent evidence of practical difficulty, but whether the Board of Zoning Adjustment had before it substantial and competent evidence to deny the variance. The bottom line is that, based on substantial and competent evidence in the record, it was reasonable for the Board of Zoning Adjustment to conclude that Cousins failed to carry its burden of establishing an entitlement to the variance it requested, and there was no abuse of discretion by the board in denying the variance.