Recycling everything leads to successful appeal of guilty verdict on charge of no trash service

Even best recyclers generate some waste, Redington says.


David Skaer and his family recycle everything, literally.

Paper, aluminum cans, plastic and glass containers — he even spreads recycled mulch from local tree trimmers around the fruit trees on his property on Schuessler Road in Concord.

“I’m just an odd case, really. I don’t think most people live like I live,” said Skaer, 58, a self-described “conscientious consumer” who’s lived in south county for 19 years and has recycled for more than three decades.

But Skaer’s environmentally friendly lifestyle landed him in circuit court last year. St. Louis County cited him for not having trash service, a violation of its waste management ordinances. Skaer’s defense: He produces only recyclable waste at his house and doesn’t need trash pickup.

But at trial, county prosecutor Victor Melenbrink asked the court to accept as “common knowledge” that all households produce some amount of non-recyclable waste. Circuit Judge Robert Adler granted the request over Skaer’s objection.

The decision, known as “taking judicial notice,” rendered Skaer’s defense virtually useless. He was found guilty and was ordered to pay a $50 fine. He appealed the verdict in November to the Eastern District of the Missouri Court of Appeals.

Skaer stood before a panel of three appellate judges last month — representing himself — and again presented his simple defense: He recycles everything.

On June 29, the appellate court reversed the circuit court’s judgment.

In their opinion, Judges Roy Richter, Kenneth Romines and Thomas Frawley stated that “whether or not someone could live at a residence and recycle all his or her waste is not a matter of common knowledge, and should not be accepted as such.”

Whether Skaer generated trash was a key element in the case against him, the judges stated, and it was the county’s burden to submit evidence at his trial to prove it beyond a reasonable doubt.

“They didn’t prove a thing,” Skaer said.

The appellate court’s ruling could potentially knock some teeth out of the county’s waste management code — namely its trash district program, which was established in 2008 and has been enforced since early 2009.

“We’ll have to take a look at it,” County Counselor Pat Redington said. “The court asked whether we had gotten subpoenas or whether we had done surveillance on people. Those probably aren’t things that we’re inclined to do. So we’ll have to look at other ways of prosecuting it and/or appealing the decision.”

The county had not appealed the appellate court’s decision at press time on Monday.

But Lester Stuckmeyer, an attorney who represents the group Citizens in Opposition to Monopoly Trash Districts, says he’s struggling to think of evidence the county could submit in court to legitimately prove that an individual generated trash.

“Not anecdotal evidence, not expert witnesses coming in saying people that live in houses generate trash, but they have to have actual, demonstrable evidence,” Stuckmeyer said. “A police officer, somebody from code enforcement — somebody’s going to have to come in and say: ‘I saw waste coming from that house going somewhere it’s not permitted to be.’ They’re going to have to show people are doing that, or get people to testify that’s what they’re doing. And I think that’s going to be hard for the county to prove.”

All of unincorporated St. Louis County is divided into eight trash districts, each of which is served exclusively by one of three waste haulers — Allied Waste, IESI or Veolia Environmental Services. District residents who don’t contract with their assigned hauler for trash service face fines and, if they still don’t set up an agreement, prosecution.

Subdivisions can vote to opt out of the program; more than 300 have done so.

County officials contend that having one hauler per district has led to a more uniform brand of service and lower prices.

But some waste haulers and residents, mostly in south county, have criticized the program because county officials also have stated that the districts likely would force some small haulers out of business due to a lack of competition.

Residents also have complained that they no longer can switch to a different hauler if their service is unsatisfactory, or choose whether to have trash pickup at all.

The legality of the trash district program and waste management code has been challenged in four lawsuits pending against the county in the circuit and appellate courts.

One of those, a class-action suit, questions the manner in which the county has been prosecuting its residents.

Dozens of unincorporated residents have been summoned to court for not having a waste removal agreement.

They’ve all been found guilty of the violation, either by admitting to generating trash or, in “some but not all” cases, through the county’s use of judicial notice, Redington said.

Skaer said he told his assigned trash hauler, Veolia, “right from the start” that he wasn’t going to pay for a service he didn’t need.

“They kept sending me bills and sending me bills,” Skaer said. “And I kept calling them and calling them every time they sent me bills.”

After about 10 months, Veolia reported Skaer to the county, which demanded he pay his trash bill. Skaer said he wanted to resolve the matter in court.

“I told them (the county): ‘This is going to to court, so you might as well cool your jets. You’re not getting a dime until this goes to court, because if I win, you’re not going to have anything to stand on,'” he said.

A handful of attorneys told Skaer his argument was strong, but representing him wouldn’t be cheap. He decided to take on the county himself — a job he said is possible, albeit not easy, to do.

“If you start really getting into this and doing it yourself, you’ve gotta learn a lot,” said Skaer, who is a soil scientist for the U.S. Department of Agriculture. “I was on the Internet, reading things. I had to write my own legal brief. It’s not impossible for a person to do this at all. It’s just a matter of are you willing to take your time to learn something that’s fairly challenging?”

He added, “I didn’t realize that when I first started doing this. But now that it’s over and I won, I realize how unbelievably important that little fact is. Prosecutors commonly use that term — ‘common knowledge’ — and the courts accept it and very few people ever challenge it. I did.”

However, Stuckmeyer, who is representing the plaintiffs in one of the trash district lawsuits, cautioned that the appellate court’s ruling isn’t a sweeping victory for trash district opponents.

Skaer’s case is unique because he, indeed, recycles everything, Stuckmeyer said.

It’s a different story for residents who generate small amounts of trash and find other ways of getting rid of it, or those who own a business and use a commercial trash bin to dispose of their household waste, he said.

“The law — at least the criminal law — is such that protection of the innocent is important, even so much so as it sometimes will allow those that are guilty to go free,” Stuckmeyer said. “David Skaer is the innocent that the law needs to protect. And I think in doing so this court opinion will probably wind up benefiting people who do generate waste. But the state has the burden of proving it.

“If they were to be caught with that bag of trash on their way to the other Dumpster, I think they would in fact be convicted under the statute. But the state has to do that, and I think that requires some manpower. I don’t believe it’s going to be as easy for them to just roll people over anymore.”

Redington, though, seemed confident the county would come up with another way to prosecute residents who refuse to set up trash service — even those that share Skaer’s passion for recycling.

“I think most people would agree that we all generate some waste,” she said. “Even the best recyclers — and there’s some really great recyclers out there — everybody does generate some waste that can’t be recycled.”