Damon ex rel. Situated v. City of Kan. City

• Decision Date: 25 February 2014
• Docket Number: No. WD 75363.,WD 75363.
• Citation: 419 S.W.3d 162
• Parties: Paul DAMON and Natalia Olinetchouk, on behalf of Themselves and all others Similarly Situated, Appellants, v. CITY OF KANSAS CITY, Missouri and American Traffic Solutions, Inc., Respondents.
• Court: Missouri Court of Appeals

419 S.W.3d 162

Paul DAMON and Natalia Olinetchouk, on behalf of Themselves and all others Similarly Situated, Appellants,

v.CITY OF KANSAS CITY, Missouri and American Traffic Solutions, Inc., Respondents.

No. WD 75363.

Missouri Court of Appeals, Western District.

Nov. 26, 2013.

Application to Transfer to Supreme Court Denied Dec. 24, 2013.

Application for Transfer Denied Feb. 25, 2014.

Ryan A. Keane, St. Louis, MO and Mitchell I. Burgess, Kansas City, MO, for appellants.

Chad Stewart, Kansas City, MO, for respondent City of Kansas City.

Jane E. Dueker, St. Louis, MO for respondent American Traffic Solutions.

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Paul Damon (“Damon”) and Natalia Olinetchouk (“Olinetchouk”), on behalf of themselves and others similarly situated, appeal the trial court's dismissal of their class action petition for declaratory relief, injunctive relief, and damages against the City of Kansas City and American Traffic Solutions, Inc. We hold that the ordinance is invalid because it conflicts with state law. We further hold that Damon and Olinetchouk are not barred from asserting their claims. The judgment is reversed and the cause remanded.

FACTUAL AND PROCEDURAL HISTORY ¹

This class-action lawsuit questions the validity of an ordinance (and corresponding notices of violations) governing a municipality's automated traffic control signals, commonly referred to as red-light cameras. Appellants Damon and Olinetchouk brought suit in the Jackson County Circuit Court against the City of Kansas City (the “City”) and the company with which it contracts, American Traffic Solutions (“ATS”) (collectively, “Respondents”).²

Appellants seek declaratory relief, injunctive relief and damages from the municipality and from ATS, which set up and operates the traffic enforcement cameras. ATS is a private, for-profit company that markets, installs, operates, and/or maintains red-light camera products and services to municipal governments throughout the country.

The petition includes two subclasses of plaintiffs (collectively, “Appellants” or the “subclasses”). Subclass One, consisting of Damon and others similarly situated, received a Notice of Violation and paid the fine and costs without going to court. Subclass Two, consisting of Olinetchouk and others similarly situated, received a Notice of Violation but have not paid the fine or tried the underlying municipal case and currently face prosecution. ³

Appellants allege that ATS and the City together install, maintain, and operate the red-light cameras and that together they enforce red-light camera citations, though it is further alleged that sometimes ATS alone determines whether a violation has occurred and causes a citation to be issued. It is further alleged that ATS encourages a guilty plea, paying fine, plus paying a “convenience fee” via its private website (the “fastest and easiest way to pay”) for $4 or by way of a toll-free “customer service” number for $4. The Notice of Violation also states, “If you have any questions, please call Customer Service” at the listed toll-free number, which is operated by ATS with ATS employees answering the phones.

The city ordinance governing automated traffic control systems is section 70–961.⁴ As set out fully below, the ordinance creates a “rebuttable presumption” that the owner of a motor vehicle captured by the camera is the operator. Also at issue is a provision of the ordinance that provides as follows: “Upon the filing of an information in the municipal division of the circuit court the court administrator shall issue a Summons, with a court date established, pursuant to Missouri Supreme Court Rule 37.” Appellants allege that in practice, the court date was not always established on the Notice.

Also, as set out further below, additional contested ordinance language provides in part: “No vehicle shall be driven into an intersection controlled by a traffic control signal at which an automated traffic control system is installed while the traffic control signal facing the vehicle displays a steady red signal....” (emphasis added). Appellants allege that because of this language, a violation of this ordinance constitutes a moving violation and thus must be governed by state law rather than by an ordinance. Also, Appellants allege:

The Ordinance, despite Defendants' attempts to make it appear civil, is criminal in nature because the Ordinance seeks to regulate and prosecute violations predicated solely on failure to obey traffic signals, violations that are criminal under Missouri law, and/or is criminal in effect because the Ordinance authorizes arrest as a mechanism for enforcing the Ordinance.

As notification that he violated the ordinance, Damon was issued solely a Notice of Violation, and Olinetchouk was issued both a Notice of Violation and a Summons. The documents in both cases included instructions for paying the fine or for submitting an affidavit either that a person other than the owner was the driver of the vehicle or that the notice was otherwise received in error. The style of Damon's Notice of Violation read:

Kansas City Missouri

Photo Enforcement Program

PO Box 22081

Tempe, AZ 85285–2091

(Emphasis added.)

As noted above, Damon's Notice of Violation encouraged online payment of the fine to an ATS-run website (www. violationinfo. com)—and required an additional $4 “convenience fee” for the privilegeof paying the fine online or by way of a toll-free number, a fee that appears to be retained by ATS but is unclear from the record before us. The Notice of Violation also included a form to mail in payment of the fee—again, not to an address in the city of Kansas City or even in Missouri—but to a post office box in Cincinnati, Ohio, leased to ATS. Damon's Notice of Violation also had a provision for rental-car companies to mail information identifying the party who had rented the car to a post office box in Tempe, Arizona that was leased to ATS. It also included the toll-free “Customer Service” number for “any questions” about payment, operated by ATS with ATS employees answering the phones.

The Notice of Violation—again, nowhere delineated “Summons”—mailed to Damon stated that if he wished to “dispute this notice or plead not guilty ” (emphasis added), the owner was not to send payment, and a “Summons” would appear in the mail. But Damon's Notice of Violation also instructed him to contact the City by way of a municipal website (www. kcmo. org/ court) or by way of a local Kansas City telephone number to request a court date to plead not guilty, stating that “[i]f you fail to pay or set a court date, you will be summoned to court on a date certain. Your failure to appear at that time may result in the issuance of a warrant for your arrest and further penalties” (emphasis added).

Olinetchouk's documents included a separate “Summons” and indicated she should appear on the scheduled court date set forth in the Summons if she wished to dispute the notice or plead not guilty. Olinetchouk's Summons stated also: “Your failure to appear on the date below may result in the issuance of a warrant for your arrest and further penalties” (emphasis added). Olinetchouk's documents allowed online payment through the same ATS-run website as Damon's with the same “convenience fee.” The address for mailing payment or a not guilty plea under Olinetchouk's documents was the address of the City's municipal division of the Sixteenth Judicial Circuit Court, but it included the ATS Tempe, Arizona address for rental-car companies. It also included the “Customer Service” toll-free number operated by ATS for any questions regarding payment.

The documents provided to both subclasses indicate that “no points will be assessed” for a violation of this ordinance. The ordinance provides for a fine in the amount of $100. Damon's documents provide that the “Penalty is a Fine and Costs of $100,” while Olinetchouk's documents provide “Penalty is a Fine of $100” but makes no mention of “costs.” ⁵

Relevant to this appeal, Appellants further allege the following:

—“ATS is the first party to receive and review images of potential red light camera violations before sending those images to KC police officers, who then issue a citation in the form of a Notice of Violation.”

—“[T]here are times when [City's] police officers do not review these images to determine whether a violation has actually occurred, which results in employees of ATS, not officers of the law, determining whether a violation occurred and then issuing a citation.”

—Respondents have “exploited to engage in an underhanded practice of persecuting and bilking Missourians under the guise and pretext of a public safety program.”

—In bringing the class action, the Subclasses “seek to expose what they and other Missouri citizens believe is an unscrupulous business venture between an out-of-state for profit corporation and a municipal government seeking new ways to fill city coffers.”

—Elected representatives of the City have admitted that the purpose behind the camera program is to “make money” but that “most of the income from the fines are [sic] going to the vendor, [ATS].”

—Both Respondents “deliberately circumvented Missouri state laws intended to keep dangerous drivers off the road ... at the peril of Missouri citizens” in that the ordinance “does not actually promote public safety because Defendant KC has converted misdemeanor moving violations into non-moving infractions to avoid reporting guilty pleas and convictions, which means that no driver will ever be assessed points and removed from the road for what KC calls public safety violations.”

“ ‘[I]njury wrecks, rear-end wrecks and overall wrecks all increased’ after Defendants installed the cameras” because cameras increase crashes and injuries; cameras do little or nothing to reduce accidents due to distracted or drunk drivers,...