City of University City, Missouri, et al., Appellants v. AT&T Wireless Services, Inc., et al., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: City of University City, Missouri, et al., Appellants v. AT&T Wireless Services, Inc., et al., Respondents. Case Number: SC87208 Handdown Date: 08/08/2006 Appeal From: Circuit Court of St. Louis County, Hon. Bernhardt C. Drumm, Jr. Counsel for Appellant: Stephen M. Tillery, Steven A. Katz, Douglas R. Sprong, John W. Hoffman, John F. Mulligan, Jr., Howard Paperner and Cynthia L. Hoemann Counsel for Respondent: Todd W. Rushkamp, Elizabeth C. Burke, Joseph A. Gagnon, Kevin D. Mason, Stephen R. Clark, Kristin E. Weinberg, Mark Leadlove, Thomas Rea, Jennifer Aspinall, Mark J. Bremer, Kevin Sullivan, Gerard T. Noce, Amanda Mueller, Jordan B. Cherrick, Jason L. Ross, James H. Ferrick, III, Kirsten M. Ahmad, Edward F. Downey, Jeffery J. Kalinowski, Christopher A. Perrin, David B. Johnson, Terry F. Moritz, Roger A. Lewis, Stacy S. Arnold, Stephen H. Locher and James H. White Opinion Summary: St. Louis County, University City and various other municipalities filed suits against numerous telecommunications companies. These circuit court consolidated these suits in September 2005. After the governor signed House Bill No. 209 into law in July 2005, the companies filed a motion for judgment on the pleadings or to dismiss. In October 2005, the circuit court granted the companies' motion to dismiss, declaring that HB 209 was constitutional and that it required dismissal of the consolidated case "without further showing." It further declared that the companies were immune from past tax liability. The municipalities appeal. REVERSED AND REMANDED. Court en banc holds: The issues presented in this case are substantially the same as those in City of Springfield v. Sprint Spectrum, L.P., ____ S.W.3d _____ (Mo. banc 2006) (No. SC87238, decided August 8, 2006), which held that section 92.086.10, RSMo, is a special law in violation of article III, section 40(30) of the Missouri constitution. This Court also noted in City of Springfield that sections 92.074 to 92.089, RSMo, are invalid in their entirety. City of Springfield's holding applies equally here.

Citation: Opinion Author: Laura Denvir Stith, Judge Opinion Vote: REVERSED AND REMANDED. Wolff, C.J., Teitelman, Limbaugh, and White, JJ., and Baker and Holliger, Sp.JJ., concur; Price and Russell, JJ., not participating. Opinion: This is an appeal of the trial court's dismissal of appellants' consolidated claims that the "Municipal Telecommunications Business License Tax Simplification Act" ("Act"), codified at 92.074 to 92.095, RSMo Supp. 2005, (FN1) is unconstitutional in the manner in which it regulates and prohibits collection by municipalities of business license taxes on telecommunications companies for wireless service already provided by those companies before the law was enacted. Appellants, St. Louis County, the City of University City, and various other municipalities (collectively "the Cities"), filed suits, which were consolidated by the circuit court in September 2005.(FN2) The suits were filed against numerous telecommunications companies, hereinafter referred to collectively as "Respondents."(FN3) After the governor signed the Act in July 2005, Respondents filed a motion for judgment on the pleadings or to dismiss the Cities' petition for declaratory and other relief. In October 2005, the circuit court granted Respondents' motion to dismiss, declaring that House Bill 209 was constitutional and that it required dismissal of the consolidated case "without further showing." It further declared that Respondents were immune from past tax liability and then dismissed the Cities' original and amended petitions with prejudice. The issues presented are substantially the same as those in City of Springfield v. Sprint Spectrum, L.P., ____ S.W.3d _____ (Mo. banc 2006) (No. SC87238, decided August 8, 2006), in which Springfield similarly asserts that the trial court erred in dismissing its suit for unpaid license taxes based on Sprint's claim that wireless service is not telephone service and that liability for wireless service taxes has been eliminated by the Act. In City of Springfield, with which this case was consolidated for purposes of oral argument, this Court held that section 92.086.10 is a special law in violation of the Missouri Constitution, art. III, sec. 40(30). Further, as this Court also noted in City of Springfield, because section 92.092 provides that if any substantive provision of sections 92.074 to 92.089 is invalid all such sections are invalid,

sections 92.074 to 92.089 are invalid in their entirety. City of Springfield's holding applies equally here. The case is remanded for further proceedings in light of that decision.(FN4) The judgment is reversed, and the cause is remanded.

Footnotes: FN1.The Act was included in House Bill 209. H.B. 209, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005); 2005 Mo. Laws 429. All statutory references are to RSMo Supp. 2005, unless otherwise noted. FN2.Other municipalities included the Missouri cities of Blue Springs, Cape Girardeau, Chesterfield, Dexter, Ellisville, Ferguson, Florissant, Gladstone, Independence, Jennings, Kirkwood, Manchester, Maplewood, Maryland Heights, Northwoods, O'Fallon, St. Joseph, Vinita Park, Warson Woods, Wellston, and Winchester, as well as various individuals. FN3.Other defendants included: AT&T Wireless Services, Inc.; AT&T Wireless PCS, LLC; Alltel Communications, Inc.; Ameritech Mobile Communications, LLC; Bell Atlantic Cellular Holdings, LP; Bell Atlantic Personal Communications, Inc.; Cellco Partnership; Cingular Wireless, LLC; Cingular Wireless II, LLC; Cybertel Cellular Telephone Co.; Eastern Missouri Cellular Ltd. Partnership; GTE Consumer Services, Inc.; GTE Wireless, Inc.; GTE Wireless of Ohio, Inc.; GTE Wireless of the South, Inc.; JV Partnerco, LLC; Kansas City SMSA, LP; MC Cellular Corp.; MC Cellular, LLC; Missouri RSA 8 Ltd. Partnership; Missouri RSA 11/12 Ltd. Partnership; New Cingular Wireless PCS, LLC; Nextel Communications, Inc.; Nextel West Corp.; Nynex PCS, Inc.; PCSCO Partnership; PCS Nucleus, LP; Pacific Bell Wireless, LLC; Pacific Telesis Mobile Services, LLC; St. Joseph Celltelco; St. Joseph SMSA Ltd. Partnership; Southwestern Bell Mobile Systems, LLC; Southwestern Bell Wireless, LLC; Sprintcom, Inc.; Sprint Spectrum, LP; Telecorp Communications, LLC; Telecorp Communications, Inc.; T-Mobile USA, Inc.; United States Cellular Corp.; United States Cellular Operating Co., LLC; United States Cellular Operating Co. (USCOC) Greater Missouri, LLC; VS Washington Corp.; Verizon Wireless Services, LLC; Verizon Wireless (VAW), LLC; Voicestream Kansas City, Inc.; Voicestream PCS II Corp.; Wirelessco, LP; Peace Valley Cellular Telephone Co.; Cellular Mobile Systems of Missouri, Inc. FN4.See also City of St. Louis v. Sprint Spectrum, L.P., ____ S.W.3d _____ (Mo. banc 2006) (No. SC87400, decided August 8, 2006). Similarly, to the extent that issues regarding the standing or capacity of third-class or fourth-class cities to sue in their own name were preserved by Respondents, the trial court shall be guided by this Court's holding in City of Wellston, Missouri & City of Winchester, Missouri v. SBC Commc'ns, Inc., et al., ___ S.W.3d ___ (Mo. banc 2006) (No. SC87207, decided August 8, 2006). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.