A recent appeals court ruling gave Jefferson City's government more power than state law allows, Barbara Buescher's attorney argued in a seven-page motion filed this week for the state Supreme Court to hear the case.
"Ordinances that are not in line with statutory provisions are void," attorney Audrey Smollen wrote in her application to transfer the case from the Western District appeals court. "It is imperative that the Supreme Court review this expansion of power and authority allowed to constitutional charter cities under this ruling."
Smollen is challenging the May 3 Western District ruling Jefferson City's government did nothing wrong when it billed Buescher for work done on some of her properties in 2014 and 2015.
Marshall Wilson, who represented the city in the appeals court hearing, told the News Tribune Friday: "We are confident that the court of appeals reached the correct decision, based on settled law."
Buescher owns a number of properties on Jefferson City's east side, especially along and near East Capitol Avenue.
The appeals court ruling noted the city government "took actions to abate nuisances on her properties, including boarding up windows and doors to secure the buildings, cutting and trimming the yards, and removing weeds and debris" - then sent her a special tax bill for the costs of the work and an administrative fee, and took her to court when she didn't pay.
After a hearing April 19, 2016, Cole County Presiding Circuit Judge Pat Joyce issued a one-page ruling Buescher was "justly indebted" to the city and owed $24,785.33.
Smollen argued Jefferson City voters never approved the city's recovering its nuisance abatement costs, so Joyce's ruling was wrong.
The appeals court ruled "Buescher presented no evidence that the City did not obtain voter approval," but Smollen's motion argued "relevant evidence concerning the vote under question was in the legal file and referenced in the post-trial brief."
That evidence, she said, was a city statement that it had no records about a vote - when state law requires all election results to be certified and filed with the political subdivision where the election was held.
The appeals court found that, as a charter city, Jefferson City had authority under Missouri's Constitution and laws "to enact its own ordinances concerning the repair or maintenance of buildings without including (a mandatory) hearing requirement."
Smollen's application for transfer argued the appeals court ruling "greatly broadens the power and authority of constitutional charter cities, creates conflict with other caselaw, including its own precedent and that of the Supreme Court."
She also said the appeals court decision makes some existing state law language "superflous" and "eschews strong due process-protecting hearings otherwise required by statutes."
As she argued during the appeals court hearing in Fulton on April 5, Smollen tells the Supreme Court existing law gave only Kansas City the right to "enact ordinances for the abatement of a condition of any lot or land that has vacant buildings or structures open to entry" - so the appeals court was wrong to expand that authority to other charter cities.
Additionally, Smollen wrote, she's found no state law or Jefferson City ordinance that "would authorize the city to board up all windows and doors of vacant buildings."
The Supreme Court will decide whether it wants to take the case; there is no set schedule for making that decision.
If the high court agrees to take the case, it will set a schedule for the parties to file briefs and to make oral arguments.
If it doesn't accept the transfer, the case ends with the appeals court decision.