Mary Noel v. Board of Election , 2015 Mo. App. LEXIS 687 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
MARY NOEL, ET AL., ) No. ED101630
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable Robert H. Dierker
BOARD OF ELECTION, ET AL., )
)
Defendant. ) FILED: June 30, 2015
Appellants Leonard Jones, Pearl Olsen, Courtnae Smith, David Scott, and Lynn Oldham
(collectively, "Drafters") appeal from the trial court's judgment, following a bench trial, holding
that the Initiative Petition at issue conflicts with state law and granting injunctive relief. Mary
Erin Noel, Joseph McNeal, Melinda Gorman, and the Law Offices of Fehlig, Fehlig & Tatum,
LLC (collectively, "Plaintiffs") also cross-appeal from the trial court's judgment holding that the
form of the Initiative Petition submitted by Drafters was lawful and dismissing Plaintiffs' equal
protection claim. We affirm.
I. BACKGROUND
Drafters are members and representatives of the Committee of Petitioners for the
Initiative Petition at issue here, and were involved in its formulation. The proposed Initiative
Petition would do two things: (1) prohibit the City of St. Louis from providing "public financial
incentives" to "unsustainable energy producers," and (2) require the City to create a "sustainable
energy plan" which mandates the City provide financial incentives to "renewable energy
producers."
Drafters gathered signatures in support of the Initiative Petition and submitted them to the
Board of Election Commissioners for the City of St. Louis ("the Board of Election
Commissioners") on July 31, 2013. The Board of Election Commissioners certified the
sufficiency of the signatures on August 12, 2013, and submitted the ballot measure to the Board
of Aldermen for approval. As the Board of Aldermen did not pass the ballot measure within 60
days, the Initiative Petition was scheduled to be placed on the ballot on April 8, 2014.
Plaintiffs are citizens and taxpayers of the City of St. Louis, and on January 31, 2014,
they brought a civil action seeking to prevent the Board of Election Commissioners from placing
the Initiative Petition on the ballot. On February 7, 2014, Judge Robert H. Dierker held a
hearing on Plaintiffs' Motion for Preliminary Injunction, and on February 11, 2014, Judge
Dierker granted Plaintiff's motion by written order.
Trial took place on March 31, 2014. The Committee of Petitioners were allowed by
Judge Dierker to intervene during the trial. On May 27, 2014, Judge Dierker issued his Findings
of Fact, Conclusions of Law, Order and Judgment. Judge Dierker granted judgment in favor of
Plaintiffs on Counts II and VII, holding the Initiative Petition conflicted with state law and
granting injunctive relief. He granted judgment in favor of Drafters on Counts I, III, IV, and V,
and dismissed Plaintiffs' equal protection claim, Count VI, as moot.
Drafters filed this appeal alleging error with Counts II and VII, with Plaintiffs'
subsequently filing a cross-appeal alleging error on counts I, III, IV, V and VI.
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II. DISCUSSION
In their sole point on appeal, Drafters allege the trial court erred in granting judgment for
Plaintiffs and holding the Initiative Petition conflicts with Missouri state statutes. Drafters argue
the Initiative Petition is neither expressly inconsistent nor in irreconcilable conflict with state
statutes, and thus, is not facially unconstitutional.
Plaintiffs bring two points on cross-appeal. In their first point, Plaintiffs allege the trial
court erred in finding the form of the Initiative Petition to be in substantial conformity with the
law because it contains an insufficient and unfair summary statement. Secondly, Plaintiffs allege
the trial court erred in dismissing their equal protection claim. Plaintiffs argue the Initiative
Petition lacked any rational relationship to a legitimate governmental purpose, and thus violates
the equal protection clauses of the Missouri Constitution and the Fourteenth Amendment to the
United States Constitution.
Standard of Review
In a bench-tried case, we must sustain the trial court's judgment unless there is no
substantial evidence to support it, it is against the weight of the evidence, or it erroneously
declares or applies the law. Brown v. Carnahan, 370 S.W.3d 637, 646 (Mo. banc 2012) (citing
Murphy v. Carron, 536 S.W.3d 30, 32 (Mo. banc 1976)). A determination of the constitutional
validity of a statute is a question of law we review de novo. City of Kansas City v. Chastain, 420
S.W.3d 550, 554 (Mo. banc 2014).
Initiative Petition is Facially Unconstitutional
In their sole point on appeal, Drafters allege the trial court erred in holding the Initiative
Petition conflicts with state statutes. Drafters argue the Initiative Petition is neither expressly
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inconsistent nor in irreconcilable conflict with state statutes, and thus is not facially
unconstitutional.
"'Before the people vote on an initiative, courts may consider only those threshold issues
that affect the integrity of the election itself, and that are so clear as to constitute a matter of
form." Brown, 370 S.W.3d at 645, quoting United Gamefowl Breeders Ass'n of Mo. v. Nixon,
19 S.W.3d 137, 139 (Mo. banc 2000). Our primary duty is to determine "whether the
constitutional requirements and limits of power, as expressed in the provisions relating to the
procedure and form of initiative petitions, have been regarded." Missourians to Protect the
Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990).
The City of St. Louis is a charter city governed by Article VI, Section 19(a) of the
Missouri Constitution, which reads as follows:
Any city which adopts or has adopted a charter for its own government, shall have
all powers which the general assembly of the state of Missouri has authority to
confer upon any city, provided such powers are consistent with the constitution of
this state and are not limited or denied either by the charter so adopted or by
statute. Such a city shall, in addition to its home rule powers, have all powers
conferred by law.
Mo. Const. art. VI, Section 19(a). Thus, "[a] charter provision that conflicts with a state statute
violates Article VI, [Section] 19(a) and is void." State ex rel. Hazelwood Yellow Ribbon Comm.
v. Klos, 35 S.W.3d 457, 469 (Mo. App. E.D. 2000) (citing City of Springfield v. Goff, 918
S.W.2d 786, 789 (Mo. banc 1996)). The test is whether the charter permits what a statute
prohibits or prohibits what a statute permits. Id.
The trial court found the Initiative Petition to be in conflict with several "economic
development" statutes, but based its decision solely on conflicts with two statutes: the "Real
Property Tax Increment Allocation Redevelopment Act", Sections 99.800 et seq., RSMo (2000),
and the "special business districts" statute, Sections 71.790 et seq., RSMo (2006). As the trial
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court stated, while these statutes establish review procedures before a city can approve a
redevelopment plan which will use tax increment financing ("TIF"), nowhere within the statutes
exist any rules or restrictions on the types or classes of persons or entities who may submit a TIF
plan or attempt to establish a special business district.
The key language of the Initiative Petition for our analysis provides that the city "shall
not grant any Public Financial Incentives to an Unsustainable Energy Producer." A "Public
Financial Incentive" is defined as any "economic or financial incentive offered or provided by
the City," including any tax reductions or credits, any TIFs, any benefit related to a public fund
or program, and "the ability to form, own, direct, and/or receive any economic or financial
benefit from any special taxation district." The real problem lies in the definition of
"Unsustainable Energy Producer," which includes not only organizations that mine or extract
fossil fuels, coal, oil and other non-renewable energy sources, but also "any entity or
organization . . . that transacts at least $1,000,000 of business per calendar year with any entity or
organization described in the previous sentence."
Thus, the Initiative Petition would prohibit any "Unsustainable Energy Producer" from
participating or benefitting from any TIF or special business district programs; however, the Real
Property Tax Increment Allocation Redevelopment Act and the special business districts statute
do not place any restrictions on what type of person or entity may participate in the programs.
Drafters argue the Initiative Petition does not restrict the power of the city to provide
financial incentives; it just restricts who may receive those incentives. We find this argument
unpersuasive. The statutes grant the city full discretion in deciding who can make use of a TIF
plan or special business districts, and the Initiative Petition would forbid the city from even
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considering a plan from any person or group the Initiative Petition defines as an Unsustainable
Energy Producer.
Simply put, the statutes permit what the Initiative Petition attempts to prohibit, and
therefore the Initiative Petition is unconstitutional under Article VI, Section 19(a). Drafters' sole
point on appeal is denied.
Form of the Initiative Petition
In Plaintiffs' first point on cross-appeal, they allege the trial court erred in holding that the
form of the Initiative Petition is in substantial conformity with the law. Plaintiffs argue that
because the summary statement is insufficient and unfair, it makes the Initiative Petition
unlawful.
As Drafters point out, Plaintiffs' reliance on Missouri state statutes and cases interpreting
them is misguided. The controlling law on the initiative petition process is the Charter of the
City of St. Louis. Section 2 of the Charter requires petitions to contain "the proposed ordinance
in full and designate by names and addresses five persons as the committee of the petitioners."
Nowhere in the Charter is there a requirement for a summary statement of a proposed ordinance,
and there are no guidelines for summary statements. Thus, we disagree with Plaintiffs' argument
that because the summary statement is insufficient the Initiative Petition's form is unlawful, as
there is no Charter requirement that a summary statement even be included, much less any
standards on what would constitute a sufficient summary statement.
However, we do agree with Plaintiffs' general argument that the summary statement here
is insufficient and misleading. While not required by the Charter of the City of St. Louis, this
Court hopes Drafters would better attempt to use language in their summary statement that
"fairly and impartially summarizes the purposes of the measure so that voters will not be
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deceived or misled" and accurately reflects "the legal and probable effects of the proposed
initiative." Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012).
The summary statement reads as follows:
A proposed ordinance submitting to the registered voters of the City of St. Louis
an amendment to the City Charter enacting a new Article XXVII setting forth the
right to a sustainable energy future; requiring the City to create and publish
annual and 5-year Sustainable Energy Plans; and, prohibiting the City from
granting any Public Financial Incentives to any Unsustainable Energy Producer.
The main issue with this summary statement is the term "Unsustainable Energy
Producer." As discussed above, the definition of this term encompasses not only those
entities which mine or extract non-renewable energy sources, but any entity that does at
least $1,000,000 worth of business with one of those entities in a calendar year. We
agree with Plaintiffs that a reasonable person would not read the term "Unsustainable
Energy Producers" and assume that it included any type of entity that does business with
most energy producers.
Arielle Klagsbrun, who assisted in developing the language of the Initiative
Petition, explained at trial the term could include many universities, construction
companies, banks, law firms, even charities. We agree with Plaintiffs that a reasonable
person would not read the summary statement and the term "Unsustainable Energy
Producers" and think that all these different types of businesses which produce literally
zero energy would be excluded from any city-controlled financial incentives.
In summary, because there is no requirement in the Charter that Drafters include a
summary statement or any guidance as to what constitutes a proper summary statement,
Plaintiffs' first point is denied. However, we would urge Drafters to be more precise in
their use of language if they plan on bringing further petitions in the future.
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Equal Protection Claims
In Plaintiffs' second and final point, they allege the trial court erred in dismissing
their equal protection claims. Plaintiffs argue the Initiative Petition lacks a rational
relationship to a legitimate governmental purpose, and thus violates the equal protection
clauses of Article I, Section 2 of the Missouri Constitution and the Fourteenth
Amendment to the United States Constitution.
The trial court dismissed the equal protection claim as moot since it held the
Initiative Petition to be facially unconstitutional under Article VI, Section 19 of the
Missouri Constitution. "'A cause of action is moot when the question presented for
decision seeks a judgment upon some matter which, if the judgment was rendered, would
not have any practical effect upon any then existing controversy." Reynolds v. City of
Valley Park, 254 S.W.3d 264, 266 (Mo. App. E.D. 2008) (quoting Precision Invs., L.L.C.
v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007)).
We agree with the trial court that because the Initiative Petition was found
unconstitutional on other grounds, the equal protection claim is now moot. Any decision
by this Court would have no practical effect on any existing controversy, as the Initiative
Petition has already been found to be unconstitutional. Plaintiffs' second and final point
is denied.
III. CONCLUSION
The trial court's judgment is affirmed.
___________________________________
ROY L. RICHTER, Judge
Patricia L. Cohen, P.J., concurs
Robert M. Clayton III, J., concurs
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