The Eastern District of the Missouri Court of Appeals rejected last week all points made by plaintiffs in a lawsuit over the county’s recycling charges but ordered the case transferred to the state high court.
In an opinion handed down a little more than a year after the case was dismissed by a county circuit court, the appellate court affirmed the trial court’s judgment but ordered the matter transferred to the Missouri Supreme Court “given the general interest and importance of the questions involved.”
Four unincorporated county residents allege the recycling charges they pay their waste hauler are “taxes” and are not permitted under the Missouri Constitution’s Hancock Amendment.
Plaintiffs Ana McDonald of Affton, Lucille Degeare of Spanish Lake, David Birtley of Breckenridge Hills and James Grace of Fenton filed the class-action petition in June 2009 against the county and the three waste haulers that exclusively served eight trash districts in unincorporated areas — Allied Waste, IESI and Veolia Environmental Services.
Veolia since has moved its operations out of the St. Louis region but is still named a defendant in the case.
The county’s waste management code requires all residents to have a waste collection agreement with a trash hauler. In unincorporated areas, residents must use the hauler assigned by the county to serve their trash district.
The code also establishes a “minimum level” of trash service that all haulers in the county must provide: once-per-week trash and recycling collection and twice-yearly bulk pickup.
The Hancock Amendment requires voter approval before political subdivisions can levy any tax, license or fee.
However, county officials and the haulers contend the recycling charges aren’t taxes because the county does not receive the proceeds from them.
Circuit Judge Colleen Dolan in March 2010 granted the defendants’ motion to dismiss the case. Attorneys for the plaintiffs appealed the following month.
The appellate court last week disagreed with all three of the plaintiffs’ points in a per curiam opinion.
The court ruled the county’s recycling fees are not subject to the Hancock Amendment.
“The fee was not paid to the county and was not subject to appropriation. The waste haulers, not the county, provided this service to the residents,” the opinion stated. “The waste management code authorized the elected officials of the county to select the waste haulers to provide a minimum level of waste hauling service to the residents, which included recycling service, but the actual amount of the fee the residents paid was determined by the level of service actually provided.
“Furthermore, the waste haulers were not the agent or instrumentality through which the county charged fees for waste removal … The county is authorized to provide services through ordinances for the benefit of the public’s safety, health and welfare. This fee was paid to a private entity for services rendered and provided no revenue to the county.”
The court also disagreed with the residents’ claims the three waste haulers violated the Missouri Merchandising Practices Act and that they “improperly collected and unjustly retained the fees for recycling services that the residents did not request.”
The recycling lawsuit is one of four pending against the county’s waste management code. It was ordered transferred to the Missouri Supreme Court two days after the high court declined to hear one of the other cases.
A request by the county for a writ of prohibition was denied May 2 by the state Supreme Court in the case of three waste haulers suing over the establishment of eight trash districts in unincorporated areas without the state-required two-year notice.
The county sought the high court’s intervention, claiming the circuit court — which has ruled in the haulers’ favor — exceeded its jurisdiction. A trial is set Tuesday, May 31, before Circuit Judge Barbara Wallace to determine damages, which the plaintiffs claim are more than $23 million.
Oral arguments were scheduled Wednesday — after the Call went to press — before the state high court in a class-action suit by three unincorporated residents against the county and the trash-district waste haulers.
And in a suit by two unincorporated residents seeking a vote on the trash program, the state appellate court recently requested a transfer to the state high court.