Tupper v. City of St. Louis

• Citation: 468 S.W.3d 360
• Decision Date: 18 August 2015
• Docket Number: No. SC 94212,SC 94212
• Parties: Sarah Tupper, et al., Respondents/Cross–Appellants, v. City of St. Louis, et al., Appellants/Cross–Respondents.
• Court: United States State Supreme Court of Missouri

468 S.W.3d 360

Sarah Tupper, et al., Respondents/Cross–Appellants,

v.City of St. Louis, et al., Appellants/Cross–Respondents.

No. SC 94212

Supreme Court of Missouri, en banc.

Opinion issued August 18, 2015

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, The Honorable Steven R. Ohmer, Judge

The city was represented by Michael A. Garvin, Erin K. McGowan and Christine L. Hodzic of the city counselor's office in St. Louis.

The director of revenue was represented by Solicitor General James R. Layton of the attorney general's office in Jefferson City.

Tupper and Thurmond were represented by W. Bevis Schock, Hugh A. Eastwood, St. Louis.

Several entities filed briefs as friends of the Court: Hazelwood, Ferguson and Creve Coeur were represented by Kevin M. O'Keefe, Carl J. Lumley, Stephanie E. Karr and Edward J. Sluys of Curtis, Heinz, Garrett & O'Keefe PC, St. Louis; St. Peters was represented by V. Scott Williams and Nicholas J. Komoroski of Hazelwood & Weber LLC, St. Charles; and the Missouri Municipal League was represented by B. Allen Garner, Independence.

PATRICIA BRECKENRIDGE, CHIEF JUSTICE

After Sarah K. Tupper and Sandra L. Thurmond each received notices that she had violated ordinance 66868, the City of St. Louis's red light camera ordinance, they filed suit challenging the validity of the ordinance. They named as defendants the city, city officials, American Traffic Solutions, Inc. (ATS), Linebarger Goggan Blair & Samponson, LLC (law firm), and the Missouri director of revenue challenging the validity of the ordinance. In the suit, Ms. Tupper and Ms. Thurmon sought a declaratory judgment that ordinance 66868 is invalid and an injunction prohibiting its enforcement.

After a bench trial, the circuit court found that Ms. Tupper and Ms. Thurmond do not have an adequate remedy at law. The circuit court also found that the enforcement of the red light camera ordinance is an issue of general public interest and there is a reasonable expectation that the city will continue enforcing ordinance 66868 even though it dismissed the tickets against Ms. Tupper and Ms. Thurmond to avoid issuance of an injunction in this matter. The circuit court then found that ordinance 66868 is invalid because it was found to be void in Smith v. City of St. Louis, 409 S.W.3d 404 (Mo.App.2013), the city had not fixed the notice deficiencies at issue in Smith, and ordinance 66868 contains a rebuttable presumption that the owner of the motor vehicle was driving the vehicle. The court enjoined the city from enforcing the ordinance but denied Ms. Tupper and Ms. Thurmond's petition as to the rest of the defendants. The circuit court also denied Ms. Tupper and Ms. Thurmond's request for attorney's fees.

The city, Ms. Tupper, Ms. Thurmond, and the director of revenue all appeal. This Court affirms the circuit court's finding that Ms. Tupper and Ms. Thurmond could maintain their action for a declaratory judgment and injunctive relief because, after the city dismissed the prosecutions for the ordinance violations, they no longer had an adequate legal remedy. Further, this Court finds ordinance 66868 is constitutionally invalid because it creates a rebuttable presumption that shifts the burden of persuasion onto the defendant to prove that the defendant was not operating the motor vehicle at the time of the violation. Nonetheless, the city's prior enforcement of the ordinance was not intentional misconduct sufficient to justify an award of attorney's fees; therefore, the circuit court did not abuse its discretion in not awarding attorney's fees. Lastly, the director of revenue lacks standing to appeal the circuit court's judgment because the court denied the relief Ms. Tupper and Ms. Thurmond requested with respect to all defendants except the city. Accordingly, this Court affirms the circuit court's judgment.

Factual and Procedural Background

In 2005, the city enacted ordinance 66868, codified at section 17.07.010 of the city's code, to authorize the creation and operation of a red light camera enforcement system. Section four of ordinance 66868 permits the red light camera enforcement system to be used in prosecuting violations of the city's traffic code, stating:

In a prosecution for a violation of the traffic Code Ordinance as codified in Section 17 et seq. of the Revised Code of the City of St. Louis based on an Automated Traffic Control System Record:

A. If the City proves: 1) that a motor vehicle was being operated or used; 2) that the operation or use of the motor vehicle was in violation of the Traffic Code Ordinance as codified [in] Section 17 et seq. of the Revised Code and 3) that the defendant is the Owner of the motor vehicle in question, then:

B. A rebuttable presumption exists that such Owner of the motor vehicle operated or used in violation of the Traffic Code Ordinance as codified in Section 17 et seq. of the Revised Code was the operator of the vehicle at the time and place the violation was captured by the Automated Traffic Control System Record.

The city and ATS entered into a contract under which ATS employees watch videos of motor vehicles driving through the intersections with red light cameras and identify possible red light violations. When a possible violation is observed, the ATS employee will use the department of revenue license plate records to identify the owner of the offending motor vehicle and will forward the video and identity of the owner of the motor vehicle to the city's police department. A police officer will then review the video and determine whether there is probable cause to issue a notice of violation. A notice of violation is then sent to the owner stating that the owner's vehicle was captured failing to stop at a red light by a red light camera and the fine for the violation is $100.¹ The notice also includes a photograph of the rear of the motor vehicle that committed the violation.²

Between March 2012 and September 2013, Ms. Tupper and Ms. Thurmond each received two notices of violations stating there was probable cause to believe they violated ordinance 66868 by failing to stop at a red light. Each notice stated that the fine for the violation was $100. The notices stated that the recipient could pay the fine in person, by mail, or online or could dispute the notice without appearing in court by filling out an “affidavit of non-responsibility” stating why the recipient is not responsible for the violation or naming the individual who was operating the motor vehicle at the time of the violation. The notices further provided that failure to respond would result in service of summons and a required court appearance, at which time the recipient could enter a plea of not guilty and request a trial.

Upon receiving her first notice of violation, Ms. Tupper did not pay the fine but appeared at her court appearance and certified the case to the circuit court. Ms. Tupper was found guilty by the circuit court, but she filed a renewed motion for acquittal based on recent court of appeals decisions invalidating other red light camera ordinances. The circuit court granted the motion and acquitted Ms. Tupper.³

Ms. Tupper did not, however, respond to the second notice of violation, and Ms. Thurmond did not respond to either of her two notices. They received summonses to appear, but neither Ms. Tupper nor Ms. Thurmond appeared on the scheduled dates. Ms. Tupper and Ms. Thurmond subsequently received letters from the law firm informing them that they owed the city the $100 fine for each violation. Ms. Tupper and Ms. Thurmond admit that red light violations occurred in each case and that they were the owners of record for the respective motor vehicles involved in the violations.

On November 25, 2013, Ms. Tupper and Ms. Thurmond filed suit in the circuit court of St. Louis City against the city, the city's mayor, the police chief of the city's police department, the director of revenue, ATS, and the law firm. Ms. Tupper and Ms. Thurmond sought a temporary restraining order, preliminary injunction, and a permanent injunction to enjoin the defendants from prosecuting violations of ordinance 66868 and sought declaratory relief finding the ordinance unenforceable. In their petition, Ms. Tupper and Ms. Thurmon asserted ordinance 66868 was unlawful because the ordinance: (1) conflicts with state law by failing to assess points for a moving violation; (2) relies on a charge code for red light camera tickets that was created by an improper rulemaking process; (3) uses an inadequate form of notice that violates Rule 37.33 and their due process rights; (4) contains an unconstitutional presumption that the owner of the motor vehicle was driving the vehicle at the time and place of the violation; and (5) contains a “rat out provision” that unconstitutionally shifts the city's burden of proof. Ms. Tupper and Ms. Thurmond also sought attorney's fees.

A hearing on the motion for a temporary restraining order was held on November 27, 2013. On that date, the city dismissed the pending prosecutions against Ms. Tupper and Ms. Thurmond. The circuit court then continued Ms. Tupper and Ms. Thurmond's declaratory judgment action. The defendants each moved to dismiss. The city, the mayor, the police chief, ATS, and the law firm alleged the matter was moot, there was no justiciable controversy, Ms. Tupper and Ms. Thurmond lacked standing, Ms. Tupper and Ms. Thurmond were estopped from raising constitutional claims not asserted in the municipal division, and the petition impermissibly sought class-wide relief without utilizing the procedure for certifying a class.⁴ The director of revenue moved to dismiss on the basis that there was no relief sought from him and that the claims should be adjudicated without him.

A bench trial was held on January 13, 2014. In discussing preliminary matters, counsel for Ms. Tupper and Ms. Thurmond stated that they were “going to drop” the issue in the petition relating to the form of...