State ex rel. Collector of Winchester v. Jamison , 2012 Mo. LEXIS 2 ( 2012 )

WILLIAM RAY PRICE, JR., Judge.

I respectfully dissent. Chapter 71 of the Missouri Revised Statutes sets out a number of provisions relating to the powers and responsibilities of cities and towns in Missouri. Section 71.675, RSMo Supp. 2009, precludes Missouri cities and towns from bringing “any action in federal or state court in this state as a representative member of a class.... ” Establishing the powers and responsibilities of Missouri municipalities traditionally and particularly has been a power of the legislature.

Municipalities are creatures of the legislature. Anderson v. City of Olivette, 518 S.W.2d 34, 39 (Mo.1975). As such, the state retains control over the governmental functions of cities and towns. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 (1949); Pearson v. City of Washington, 439 S.W.2d 756, 760 (Mo.1969) (“Municipal corporations owe their origins to, and derive their powers and rights wholly from[,] the state.”). Cities and towns have no inherent powers, but are confined to those expressly delegated by the state and those necessarily implied in the authority to carry out the delegated powers. Premium Standard Farms, Inc. v. Lincoln Twp. of Putnam Cnty., 946 S.W.2d 234, 238 (Mo. banc 1997) (finding township had no express or implied authority to prosecute a nuisance action). Generally, the powers of municipal corporations may be altered at the discretion of the legislature creating them, and thus, they may be “restricted, diminished or withdrawn.” 62 C.J.S. Municipal Corporations § 235 (2011). When the legislature authorizes a municipality to exercise a power and prescribes the manner of its exercise, “the right to exercise the power given in any other manner is necessarily denied.” Pearson, 439 S.W.2d at 760.

The legislature originally provided cities and towns the power to sue. Section 65.260, RSMo 2000, states that “[e]aeh township, as a body corporate, shall have power and capacity ... [t]o sue and be sued, in the manner provided by the laws of this state.” But the legislature limited the exercise of that power in section 71.675 by declaring that cities and towns do not have the power to sue telecommunication companies as the representatives of class actions.

The principal opinion is correct that court rules supersede contradictory statutes that are procedural in nature. Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993). Court rules are used to “preserve the courts’ existence and protect it in the orderly administration of its business.” State ex rel. Geers v. Lasky, 449 S.W.2d 598, 601 (Mo. banc 1970) (internal citations omitted). Particularly in class actions, the Court has an interest in establishing rules that provide for the “advantages of economy of effort and uniformity of result.” State ex rel. Am. Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 489 (Mo. banc 2003). The rules established for class actions “promote judicial economy by permitting the litigation of the common questions of law and fact of numerous individuals in a single proceeding.” State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004).

The question in this case is whether section 71.675 is a valid exercise in legislative control over the substantive powers of Missouri’s cities and towns or an intrusion into the separate powers of the courts to control the procedures followed in litigation. A class action representative bears significant responsibilities and risks. It must protect the interests of all class members fairly and adequately, and it must pay the fees and expenses of the class. Id. at 735, 738. A city is ill-equipped for this role from a governmental and a financial perspective.

The political purpose of each governmental subdivision is to represent the interests of its own voters, not the voters of other political subdivisions. Yet, in serving as a class representative, a city or town would extend its control over litigation that affects voters of other political subdivisions. In a like manner, a city or town serving as a class representative would be responsible, at least initially, for funding the litigation. This expenditure would not be for the benefit of the class representative’s own taxpayers, but for taxpayers of other jurisdictions.

Section 71.675 does not tamper with the mechanics or functionality of our Rule 52.08 governing class action procedures. In fact, section 71.675 applies to both state and federal courts. It merely forbids cities and towns the substantive power of serving as a class representative. As noted above, there is a rational basis for the legislature to do this.

I would not hold that section 71.675 violates article V, section 5 of the Missouri Constitution. Accordingly, I would quash the preliminary writ of prohibition.