Brunner v. City of Arnold & Am. Traffic Solutions, Inc.

• Citation: 427 S.W.3d 201
• Decision Date: 29 April 2014
• Docket Number: No. ED 99034.,ED 99034.
• Parties: Jeff BRUNNER and Kimberly Moore, Appellants, v. CITY OF ARNOLD and American Traffic Solutions, Inc., Respondents.
• Court: Court of Appeal of Missouri (US)

427 S.W.3d 201

Jeff BRUNNER and Kimberly Moore, Appellants,
v.
CITY OF ARNOLD and American Traffic Solutions, Inc., Respondents.

No. ED 99034.

Missouri Court of Appeals,
Eastern District,
Division One.

Dec. 17, 2013.
Application for Transfer to Supreme Court Denied Jan. 30, 2014.
Application for Transfer Denied April 29, 2014.

[427 S.W.3d 206]

John G. Simon, Ryan A. Keane, St. Louis, MO, for Appellant.

Jane E. Dueker, Nicholas G. Frey. St. Louis, MO, for Respondent American Traffic Solutions, Inc.

William Dudley McCarter, Timothy J. Reichardt, Clayton, MO, for Respondent City of Arnold.

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.

I. BACKGROUND

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).¹

A. City of Arnold's Red Light Camera Enforcement System

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.” ² Arnold Code § 23–182. The Ordinance provides that the installed cameras take pictures of the intersection's steady red light, the vehicle proceeding through the red light, and the license plate of that vehicle. Arnold Code § 23–181(2). The Ordinance, however, expressly prohibits photographing the vehicle's occupants, particularly the driver. Arnold Code § 23–181(3).

To implement and operate City's red light camera enforcement system created by the Ordinance, City contracted with American Traffic Solutions, Inc. (“ATS”). ³

[427 S.W.3d 207]

For each citation paid, ATS receives approximately 33 percent of the levied “penalty (fine).” Arnold Code § 23–187.⁴

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”). ⁵ Arnold Code § 23–184(d). The photographs, generally, constitute the only evidence proffered by the municipality when prosecuting violations of the Ordinance.

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

penalty (fine) ... [that is] the same as the penalty (fine) ⁶ for a finding of guilty for a violation of Section 23–173 where an automated red light enforcement system was not used. Except that no points will be assigned to the violator[']s driver[']s license when guilty of an automated red light enforcement violation.

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

[427 S.W.3d 208]

of the Affidavit, recipient/owner is instructed to mail the Affidavit to ATS's headquarters in Tempe, Arizona, not to the Arnold Municipal Court.

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.

B. Jeff Brunner's and Kimberly Moore's Alleged Violations of the Ordinance

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” ⁷ and the accompanying Affidavit, an amount due of $94.50, and a warning that Brunner's “failure to appear in court at the time specified on this citation or otherwise respond to this Notice of Violation as directed may result in a warrant being issued for your arrest.” Subsequently, Brunner paid the $94.50 “penalty (fine).”

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).”

C. Pertinent Procedural Background

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

[427 S.W.3d 209]

action Petition seeks declaratory relief, injunctive relief and damages.

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:

(a) whether the Ordinance is void as a matter of law because the Ordinance conflicts with Missouri state laws (particularly Sections 304.271.1 and 304.281.1) governing traffic;

(b) whether City had the authority to enact the ordinance;

(c) whether the Ordinance is void as a matter of law because it conflicts with Missouri state laws (particularly Sections 302.225, 302.302, and 302.010(12)) establishing and governing driver's license point system;

(d) whether Respondents circumvented Missouri law by reclassifying Ordinance violations as “non-moving infractions;”

(e) whether it is lawful for City to create a rule of evidence by establishing liability based upon vehicle ownership;

(f) whether Respondents can lawfully prosecute vehicle owners if the vehicle owner was not operating the vehicle at the time of the offense;

(g) whether the Ordinance and/or Respondents' conduct violates Article I, Section 19 of the Missouri Constitution by compelling testimony to prove innocence;

(h) whether the Ordinance and/or Respondents' conduct violates Article I, Section 10 of the Missouri Constitution in depriving Appellants of life, liberty or property without due process of law;

(i) whether Brunner and Subclass 1 are entitled to recover payments made pursuant to the Ordinance if the Ordinance is found to be invalid or unconstitutional.

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...