Electronically Filed - Jefferson - May 19, 2017 - 04:11 PM

IN THE CIRCUIT COURT OF THE TWENTY-THIRD JUDICIAL CIRCUIT

OF MISSOURI
AT HILLSBORO, JEFFERSON COUNTY, MISSOURI

BRUCE KING, et al., )

)
Plaintiffs, )
)
v. ) Case No. 16JE-CC00004
)
JEFFERSON COUNTY, MISSOURI, et al., )
)
Defendants. )

DEFENDANTS MOTION TO DISMISS

Defendants, Jefferson County, Missouri, Jefferson County Council, Don Bickowski, Renee

Reuter, Bob Boyer, George Engelbach, Oscar Jim Kastens, Cliff Lane, and Jim Terry, pursuant

to Rule 55.27, move this Court to dismiss with prejudice Plaintiffs Second Amended Petition for

Declaratory Judgment (Petition) for the reasons stated herein and as more fully set forth in

Defendants Memorandum in Support of their Motion to Dismiss, incorporated herein.

1. Although Plaintiffs allege a count for declaratory judgment, they only pray for

damages. Sovereign immunity bars a claim for damages against a local government. State ex rel.

City of Nevada v. Bickel, 267 S.W.3d 780, 782 (Mo. App. 2008). [A] plaintiff must specifically

plead facts demonstrating an exception to sovereign immunity. Hummel v. St. Charles City R-3

School Dist., 114 S.W.3d 282, 284 (Mo. App. 2003). Plaintiffs fail to plead any facts demonstrating

their claim falls within an exception to sovereign immunity, and as such, their claims are barred.

2. Plaintiffs claims are additionally barred by Article III, Section 39(3) and Article

VII, Section 13 of the Missouri Constitution. Article III, Section 39(3) states that a county does

not have the power to grant any extra compensation, fee or allowance to a public officer, agent,

servant or contractor after service has been rendered. Mo. Const. Art. III 39(3). Plaintiffs solely
 Electronically Filed - Jefferson - May 19, 2017 - 04:11 PM
request a retrospective award of public funds for prior services allegedly rendered. Such relief is

unquestionably barred by the Missouri Constitution. Furthermore, Article VII, Section 13 of the

Missouri Constitution bars Plaintiffs claims as it prohibits [t]he compensation of state, county

and municipal officers from being increased during the term of office.

3. Plaintiffs fail to allege the elements of a declaratory judgment action. They assert

bare legal conclusions attempting to establish two elements, but mere conclusions are

insufficient. Jennings v. Board of Curators of Missouri State University, 386 S.W.3d 796, 798-

799 (Mo. App. 2012). Plaintiffs also entirely fail to allege that they have no adequate remedy at

law. Furthermore, declaratory judgment is not the appropriate remedy here because it would be

inconclusive. A declaratory judgment should have a conclusive effect and should lay to rest the

parties controversy. Jones v. Carnahan, 965 S.W.2d 209, 214 (Mo. App. 1998). An order from

the Court that the County follow the language of the Charter would not resolve Plaintiffs alleged

dispute, because even according to Plaintiffs, the language of the Charter permits discretion in the

setting of Plaintiffs salary.

4. Many of Plaintiffs claims are barred by the five-year statute of limitations period

under Section 516.120.2 RSMo.

5. Although Plaintiffs do not actually allege any wrongdoing by Defendants Jefferson

County Council, Don Bickowski, Renee Reuter, Bob Boyer, George Englebach, Oscar Jim

Kastens, Cliff Lane, or Jim Terry (collectively, Council Defendants), if they had, Plaintiffs

claims would be barred by official and legislative immunity.

6. Plaintiffs have improperly joined the Council Defendants as parties to this lawsuit.

Plaintiffs fail to allege even one claim against the Council Defendants, do not seek relief from the

2
 Electronically Filed - Jefferson - May 19, 2017 - 04:11 PM
Council Defendants, and therefore the Council Defendants are unquestionably improper parties

and must be dismissed from this case.

WHEREFORE, Defendants Jefferson County, Missouri, Jefferson County Council, Don

Bickowski, Renee Reuter, Bob Boyer, George Engelbach, Oscar Jim Kastens, Cliff Lane, and

Jim Terry move this Court for an Order dismissing Plaintiffs Petition with prejudice and for all

other relief this Court deems just.

Respectfully submitted,

CUNNINGHAM, VOGEL & ROST, P.C.

By: /s/ David A. Streubel

David A. Streubel, #33101
Margaret C. Eveker, #64840
Cunningham, Vogel & Rost, P.C.
333 S. Kirkwood Road, Suite 300
St. Louis, Missouri 63122
Tele: 314.446.0800
Fax: 314.446.0801
dave@municipalfirm.com
maggie@municipalfirm.com

Attorneys for Defendants

3
 Electronically Filed - Jefferson - May 19, 2017 - 04:11 PM
CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was filed electronically with
the Court, to be served by operation of the Courts electronic filing system on May 19, 2017 to:

Kevin C. Roberts
Roberts, Wooten & Zimmer, LLC
P.O. Box 888
Hillsboro, MO 63050
(636) 729-2693
kevinroberts@rwzlaw.com

and

Derrick R. Good
Thurman, Howald, Weber & Norrick
P.O. Box 800
Hillsboro, MO 63050
(636) 797-2601 ext 128
good@thurmanlaw.com

Attorneys for Plaintiffs

/s/ David A. Streubel