City of Olivette, Missouri v. St. Louis County, Missouri

In the Missouri Court of Appeals

Eastern District

DIVISION THREE`,

CITY OF OLIVETTE, MISSOURI, et al., ) No. ED104432

)

Respondents, ) Appeal from the Circuit Court

) of St. Louis County

vs. )

) Hon. Robert S. Cohen

ST. LOUIS COUNTY, MISSOURI, et al., )

) FILED:

Appeilants. ) January 10, 2017

St. Louis County and Steve Stenger, County Executive, (coilectively “the County”)

appeal from the summary judgment finding that the County did not have authority to enact

an ordinance imposing countywide minimum standards for police. We affirm.

In December of 2015, the St. Louis County County Couneil adopted and approved

an ordinance authorizing the County Executive to issue minimum police standards that

Would apply to the police departments of cities Wholly or partly located in St. Louis County

(“the Ordinance”).] The Ordinance begins With the following recitals: there are 57

municipal police departments within St. Louis County; there are disparities between these

departments’ standal'ds; there is an “inherent inequality of services” as a result; St. Louis

County Wants to ensure equal access to “consistent, qualityr public health and safety

1 The Ordinance was enacted as Ordinance 26,254 and then codified as Section 701.205 of the St. Louis

County Revised Ordinances.

services;” and “uniform fundamental standards Will enhance public health and reinforce

trust between law enforcement and the community.” The Ordinance states that it was

promulgated under authority found in its charter, the state constitution and statutes and was

enacted to “enhance the public health, Safety and welfare” of the peopie of St. Louis

County.

The Ordinance requires cities to submit police standards for approval by the County

Executive. The County Executive has discretion under the Ordinance to determine whether

a city is in compliance with the minimum standards he issues or is otherwise operating With

deficient policing servicesl Ent`orcement mechanisms in the Ordinance include pursuing

equitable relief, prosecution and takeover of police services in the non-compliant city by

the St. Louis County police department at the city’s expense The County Executive

immediately issued minimum police standards pursuant to the Ordinance The standards

impose requirements for the licensing, training and hiring of law enforcement officers and

for police department accountability and transparency.

Shortly after the standards Were issued, the City of Olivette and other cities in St.

Louis County (“the Cities”) filed petitions challenging the County’s authority to enact the

Ordinance.2 The Cities and the County filed cross-motions for summary judgment The

County contended that the Ordinance was a valid exercise of the powers granted to it as a

chapter county in Article VI, Sections IS(b) and 18(0) of the Missouri Constitution. Article

VI, Section iS(b) requires a charter county to include provisions in its charter for the

2 Two groups of cities filed separate lawsuits, which were ultimately consolidated The plaintiff cities are

Olivette, Reck Hill, Breckenridge Hills, Creve Coeur, Riclnnond I~{eights, St. Ann, Sunset Hil|s, Bel-Ridge,

Edmundson, Kirkwood, F|orissant, Clayton, Frontenac, Webster Groves, Hazelwood, Bellefontaine

Neighbors and Bridgeton.

exercise of powers conferred specifically to it by the state constitution and the laws of the

state St. Louis County’s charter includes such a provision3 One of the powers conferred

by the state is found in Section 192.300 of the Missouri Revised Statutes, which authorizes

counties to enact ordinances that enhance public health and prevent disease. Separate and

apart from the authority found in that statute or section of the constitution is the power

granted to charter counties by Article VI, Section 18(0) to perform the services and

functions of a municipality or other political subdivision, except school districts. This

authority is often referred to as a charter county’s “police powers.” The trial court

concluded that the County was not authorized to enact this Ordinance under either of these

constitutional provisions or the public health statute and entered judgment in the Cities

favor. This appeal follows

At the outset, the County asks this Court to take judicial notice of the following as

set forth in its brief:

The events which occurred in Ferguson after the Michael Brown shooting

have become part of the history of the St. Louis area. fn the aftermath of

the events, it came to light that a number of police departments located in

St. Louis County were lacking in quality standards by which most operate.

Since that time it has come to be common knowledge that when police

departments operate with poor or non-existent standards, there is often a

negative impact upon the citizenry.

It is common knowledge that Michael Brown was shot by a police officer in Ferguson,

which is in St. Louis County, and that “events” occurred thereafter. We decline to deem

the County’s opinion about the quality of the standards in city police departments in St.

Louis County to be a fact of common knowledge appropriate forjudicial notice. This Court

3 §§e ST. LOUIS COUNTY CHARTER, Section 2,180.14 (county council “shall have, by ordinance, the power

to . . . [e]xercise all powers and duties now or hereafter conferred upon counties . . . by the constitution, by

law and by this charter and determine and make provision for any matter of county government not otherwise

provided herein.”

is aware of the issues that have come to light in the aftermath of events in Ferguson, as set

out in the amicus curiae brief filed in support of the County by the American Civil Liberties

Union of Missouri Foundation (“ACLU”). The ACLU asserts there are the following

problems with municipal policing in St. Louis County: undue focus on generating revenue

over public safety needs, racial bias, inconsistent standards and the so-called “muni

shuffle,” in which problem officers are shuffled among departments without formal

discipline. It cites the published results of the United States Department of Justice’s

investigation into the Ferguson police department, a study of the police response to the

events following the shooting of Michael Brown in Ferguson and other similar reports and

commentary on these issues. The County believes, and the ACLU agrees, that countywide

minimum police standards will help address these problems

But proof_by taking judicial notice of the above or otherwise~that there is a need

for improved policing standards in the municipal police departments of St. Louis County

is simply not necessary for resolution of the issue before us. However real, important and

urgent the need might be, the County can only legislate if it has the authority to do so.

Thus, the only question here is whether the Ordinance was a valid exercise of the County’s

authority under the powers conferred by Article VI, Section lS(b) of the Missouri

Constitution and Section 192.300 of the Missouri Revised Statutes or Article Vl, Section

lS(c) of the Missouri Constitution. Our review of this issue of law resolved on summary

judgment is de novo, and the Ordinance is presumed valid and enforceable Missouri

Bankers Association, lnc. v. St.' Louis County, 448 S.W.3d 267, 271 (Mo. banc 2014). We

begin with the County’s arguments regarding Article Vl, Section lS(c).

Section 18{c)

The current form of Article Vl, Section lS(c) of the Missouri Constitution was

adopted by voter approval in 1970. lt provides:

The charter may provide for the vesting and exercise of legislative power

pertaining to any and all services and functions of any municipality or

political subdivision, except school districts, in the part of the county

outside incorporated cities; and it may provide, or authorize its governing

body to provide, the terms upon which the county may contract with any

municipality or political subdivision in the county and perform any of the

services and functions of any such municipality or political subdivision.

The charter may provide for the vesting and exercise of legislative power

pertaining to any and all services and functions of any municipality or

political subdivision, except school districts, throughout the entire county

within as well as outside incorporated municipalities; any such charter

provision shall set forth the limits within which the municipalities may

exercise the same power collaterally and coextensively. When such a

proposition is submitted to the voters of the county the ballot shall contain

a clear definition of the power, function or service to be performed and the

method by which it will be financed.

This grant of authority pertains to the performance of the services and functions of a

municipality both outside of and within incorporated areas of the county. The County has,

in accordance with the first paragraph above, provisions in its charter that authorize it to

exercise this power in unincorporated areas by ordinance. §§g ST. LOUIS COUNTY

CHARTER, Sections 2.180.22 and 2.180.23 (“the council shall have, by ordinance, the

power to. . . [fjurnish or provide within the part of the county outside incorporated cities

any service or function of any municipality or political subdivision, except school districts”

and to “[e]xercise legislative power pertaining to public health, police and traffic, building

construction, and planning and zoning, in the part of the county outside incorporated cities,

and on such other subjects as may be authorized by the constitution or by law”). A county

may also perform such services and functions countywide-outside of and within

incorporated cities_or within a particular municipality by contract, and the second

paragraph of Section lS(c) sets out what must be in the charter provision and on the ballot

5

proposition. St. Louis County’s charter provision corresponding to that constitutional

authority is as follows: “the council shall have, by ordinance, the power to . . . [p]rovide

the terms upon which the county shall perform any services and functions of any

municipality or political subdivision in the county, except school districts, when accepted

by a vote of a majority of the qualified electors voting thereon in such municipality or

subdivision, which acceptance may be revoked by a like vote; and cooperate and contract

with the municipalities or political subdivisions in the county as otherwise authorized by

this charter and by law.” ST. LOUIS COUNTY CHARTER, Section 2.18().21.4 The trial court

concluded that a vote was required in order to enact this countywide legislation, and

because there was no such vote, it was not a valid exercise of the County’s authority under

this Section iS(c).

In its opening brief on appeal, the County first contended that voter approval was

optionai, not required, because the language “when such a proposition is submitted to

voters” meant “r‘f such a proposition is submitted to voters.” But it also argued that it had

received voter approval of provisions in its charter that authorized this Ordinance when the

charter was amended in 1979. The County pointed to three general provisions in the

charter, which essentially give it any and all powers available in the constitution and the

4 lt appears these charter provisions were based on an earlier version of Article Vl, Section lS(e) of the

Missour`r Constitution:

The charter may provide for the vesting and exercise of legislative power pertaining to

public health, police and traffic, building construction, and planning and zoning, in the part

of the county outside incorporated cities; and it may provide, or authorize its governing

body to provide, the terms upon which the county shall perform any of the services and

functions of any municipality, or political subdivision in the county, except school districts,

when accepted by vote of a majority of the qualified electors voting thereon in the

municipality or subdivision, which acceptance may be revoked by like vote.

laws of the state and require liberal construction of those powers in the County’s favor.5

In response to the Cities’ contention that the County failed to provide a limiting provision

as required by Section lS(c)-“any such charter provision shall set forth the limits within

which the municipalities may exercise the same power collaterally and coextensively”~

the County claimed that no municipality can issue countywide standards and therefore no

such limiting language was required In the County’s reply brief, that claim morphed into

an argument that not only was no such limiting language required in the provision because

this was not a municipal function, but also that an election would only be required if the

County were in fact providing a service or function that could also be provided by a

municipality ln the next breath of the reply brief, however, the County returned to its

position that voter approval is optional based on its construction of the word “when.”

By the time of oral ar'gument, the County took this argument one step further and

claimed that because the issuance of countywide minimum police standards was not a

service or function of a municipality, Section 18(c) was not even applicable in the first

place We could speculate that the County’s shifting position on Section 18(0)

demonstrates its concern about the lack of voter approval for this countywide action.6 But

5 The cited charter provisions declare that St. Louis County shall have “all the powers possible for a county

to have under the constitution and laws of Missouri” and that “[t]he powers of the county under this charter

shall be construed liberally in favor of the county, and the specific mention of particular powers in this charter

or in any law shall not be construed as limiting in any way the general powers stated in this article.” ST.

Lours Couer CHARTER, Secticns t.030, 1.040; m also ST. Lours Couer CHARTER, 2.180.14, n.3 supra

6 The Supreme Court has expressly held that “[t]he second paragraph of section lS(c) requires a charter

amendment when the County seeks to exercise countywide legislative power.” Chesterfield Fire Protection

District of St. Louis Countv v. St. Louis Countv. 645 S.W.Zd 367, 370 (Mo. banc 1983). And amendments

to St. Louis County’s charter require voter approval § ST. LOUIS COUNTY CHARTER, Article X (clrarter

may be amended in enumerated ways, each of which requires a vote); size also MO. CONST., Article VI,

Sections lS(h) and lS(k) (regarding the adoption and amendment of charters by voter approval). The County

used this very procedure when it attempted unsuccessfully in l97l to impose a similar set of countywide

police standards ’I`hat ballot proposition proposed to amend the charter to require every municipal police

department in St. Louis County to provide 24-hour police service, to create a police standards commission,

which would determine compliance with that requirement, and to authorize the county police department to

7

because the County has abandoned reliance on Section lS(c) as authority for the enactment

of this Ordinance, we need not address the applicability of that authority any further or

decide if voter approval is required. Rather, we turn to whether enactment of this

Ordinance was a valid exercise of the County’s authority under Article Vi, Section lS(b)

of the constitution and Section 192.300 of the statutes, which do not require voter approval

or depend on whether the action occurs within or outside of incorporated areas.

Section 18(b) and Section 192.3[}0

As required by Article Vl, Section lB(b), St. Louis County’s charter provides that

it may, via ordinance, exercise any power conferred to it by the state. § ST. LOUIS

COUNTY CHARTER, Section 2.180.14. The County contends this Ordinance is a valid

exercise of its authority under Section 192.300 of the Missouri Revised Statutcs, which

confers on all counties the power to make “additional health rules” to those promulgated

by the Department of Health and Senior' Services, so long as they do not conflict with the

department’s rules:

192.3()(). Counties may make additional health rules*fees may be charged,

deposit in county treasury, purpose_individuals unable to pay not to be

denied health services_records and publication_violation a misdemeanor.

The county commissions and the county health center boards of the several

counties may make and promulgate orders, ordinances, rules or regulations,

respectively as will tend to enhance the public health and prevent the

entrance of infectious, contagious, communicable or dangerous

diseases into such county, but any orders, ordinances, rules or regulations

shall not be in conflict with any rules or regulations authorized and made

by the department of health and senior services in accordance with this

chapter or by the department of social services under chapter 198. The

county commissions and the county health center boards of the several

counties may establish reasonable fees to pay for any costs incurred in

perfonn those services if the municipal department failed to do so, at the expense of the offending

municipality

carrying out such orders, ordinances, rules or regulations, however, the

establishment of such fees shall not deny personal health services to those

individuals who are unable to pay such fees or impede the prevention or

control of communicable disease. Fees generated shall be deposited in the

county treasury. All fees generated under the provisions of this section shall

be used to support the public health activities for which they were generatedl

After the promulgation and adoption of such orders, ordinances, rules or

regulations by such county commission or county health board, such

commission or county health board shall make and enter an order or record

declaring such orders, ordinances, rules or regulations to be printed and

available for distribution to the public in the office of the county clerk, and

shall require a copy of such order to be published in some newspaper in the

county in three successive weeks, not later than thirty days after the entry

of such order, ordinance, rule or regulation Any person, firm, corporation

or association which violates any of the orders or ordinances adopted,

promulgated and published by such county commission is guilty of a

misdemeanor and shall be prosecuted, tried and fined as otherwise provided

by law. The county commission or county health board of any such county

has full power and authority to initiate the prosecution of any action under

this section.

MO. REV. STAT. Section 192.300 (emphasis added).

Based on the language in hold above, our courts have framed the issue as whether

the ordinance in question “bears a reasonable relation to public health enhancement and

disease prevention.” Avanti Petroleum, Inc. v. St. Louis County, 971 S.W.Zd 506, 509

(Mo. App. E.D. 1998) (citing Readev v. St. Louis County Water Companv, 352 S.W.Zd

622 (Mo. 1961)). In Avanti, this Court found that an ordinance “preventing sales of tobacco

to minors to reduce or prevent their use of such products” bore a “reasonable relation to

reducing dangerous disease.” 971 S.W.Zd at 509. ln M, the Supreme Court found

that an ordinance ordering the addition of fluoride to the county water supply would

prevent and reduce the widespread and serious disease of dental decay and Would be an

efficacious “public health measure.” 352 S.W.2d at 627. Other cases have similarly

analyzed the ordinance in terms of its relation to the prevention of disease and enhancement

of public health. E Professional Houndsmen of Missouri. lnc. v. County of Boone, 836

S.W.2d 17, 19 (Mo. App. W.D. 1992) (finding ordinance imposing requirements on animal

owners enhanced public health “by preventing rabies and animal bites” and was

“reasonabiy related to the purpose of public health enhancement and disease prevention”);

Borron v. Farrenkopf, 5 S.W.3d 618, 622 (l\/fo. App. W.D. 1999) (finding ordinance

regulating animal feeding operations “rationally related to the purpose of public health

enhancement and disease prevention” because of link between human diseases and

livestock animal waste). fn each case, the courts found that those ordinances were valid

exercises of the authority in Section 192.300 specifically because they would prevent the

spread of some disease.

The Ordinance in this case, authorizing the issuance of minimum police standards,

has nothing to do with the prevention of any disease. 'l`he County concedes as much, but

argues that, despite the plain and ordinary meaning of the word “and” in the statute, an

ordinance under Section 192.300 need not both enhance public health and prevent disease.

Rather, it contends, counties are empowered under that section to enact legislation that will

either enhance public health or prevent disease. While “and” can mean “or,” and vice

versa, most commonly “and” simply means “and.” ,S"e"e, Stiers v. Director of Revenue. 477

S.W.3d 611, 615 (Mo. banc 2016). Only when there are strong reasons and the context

favors doing so to give effect to the legislative intent should courts resort to reading “and”

as a disjunction instead of a conjunction w Hawkins v. Hawkins, 511 S.W.2d 81 1, 813

(Mo. 1974). The County argues that if the legislature had intended to limit the authority to

only ordinances that prevent disease, there would have been no reason to include the phrase

“enhance public health” and that term would be rendered meaningless if “and” were

construed as a conjunction The converse is also true though: if the legislature had intended

10

to authorize any measure that enhances public health, there would have been no reason to

specifically mention preventing disease because that would certainly be encompassed in

the more general phrase “enhancing public health.”

The County has failed to show a strong reason for construing “and” to mean “or.”

The plain meaning of the statute-as followed in the cases discussed above_demonstrates

the legislature’s intent in Section 192.300 was to authorize counties to enact only

ordinances that enhance public health and prevent disease Moreover, the context in which

the statute must be read demonstrates that, even if the authority is broad enough to

encompass other public health matters beyond just the prevention of disease, the legislature

did not intend for it to include law enforcement Minimurn standards for law enforcement

is a matters of public safety, not public health.

ln reaching this conclusion, we follow the primary rule of statutory interpretation

to give effect to legislative intent as reflected in the plain language of the statute. State ex

rel. Burns v. Whittington. 219 S.W.3d 224, 225 (Mo. banc 2007). “ln the absence of

statutory definitions, the plain and ordinary meaning of a term may be derived from a

dictionary and by considering the context of the entire statute in which it appears.” I_d. The

term “public health” is not defined in Section 192.300 or elsewhere in the statute.

According to the consensus of definitions of “public health” and “health” in standard and

legal dictionaries, the term refers to the physical and mental well-being, particularly

freedom from illness and injury, of the community at large.7 On the face of this broad and

7 Black’s La\.v Dictionary defines “public health” as “the health of the community at large” and “the healthful

or sanitary condition of the general body of people or the community en masse; esp., the methods of

maintaining the health of the community, as by preventive medicine and organized care for the sick.”

“Health” is “the quality, state, or condition of being sound or whole in body, mind, or soul; esp., freedom

11

general definition of “pul)lic health”¥and without any context-_one could say that just

about any legislation designed to improve government services to the public, including the

imposition of minimum police standards, enhances the physical and mental well-being of

the community But when read in context, it is clear that matters relating to law

enforcement are not within the scope of what the legislature meant by “enhance of public

health.”

This statute is located in the chapter creating the Department of Health and Senior

Services, which is charged with developing a comprehensive disease prevention plan,

studying the causes and prevention of diseases, designating “infectious, contagious,

communicable or dangerous” diseases and making adequate rules to prevent the spread of

such diseases § MO. REV. STAT. Sections 192.01 1.2 and 192.020.1. Thus, Chapter 192

addresses the Department of Health’s authority with respect to such matters as hepatitis C,

hygiene, disinfecting contaminated spaces, radiation, cancer, childhood immunizations,

arthritis, head and spinal cord injuries, mammography, weight loss, epilepsy, women’S

health and animal diseases communicable to humans. Likewise, the Department of

Health’s Division of Community and Public Health has rules on the following topics: food

protection, protection of drugs and cosmetics, general sanitation, lead program, toxic

from pain or sickness” and “the relative quality, state, or condition of one's physical or mental well-being,

whether good or bad.“

Webster’s Third International Dictionary defines “public health” as “the art and science dealing with the

protection and improvement of community health by organized community effort and including preventative

medicine and sanitary and social science.” “llealth” is “the condition of being sound in body, mind, or spirit;

especial|y: freedom h'om physical disease or pain” and “the general condition of the body.”

'1` he Oxford Dictionary defines “public health” as “the health of the population as a wliole, especially as

monitored, regulated, and promoted by the state,” and “health” is “the state of being tree from illness or

injury.”

12

substances, protection against radiation, communicable diseases, typhoid carriers, dead

bodies infected with a communicable disease, STDs, HlV/AIDS medication programs,

dispensing medicine during emergencies, prescription drug repository program and hemp

extract registration § 19 C.S.R 20~1.010 through 29 C.S.R 20-51.010.

The legislature created a distinct and separate entity to handle matters of law

enforcement the Department of Public Safety. That department’s role is to “provide

overall coordination in the state’s public safety and law enforcement program” and to

coordinate other agencies on public safety and law enforcement matters. Mo. REV. STA'F.

Section 650.005.1, The duties of the state highway patrol, liquor control, fire prevention

(formerly a bureau of the public health department), the state militia, the state’s boat

commission and veteran’s commission are part of the Department of Public Safety. §§g

l\/lo. REV. STAT. Section 650.005.2~10. Chapter 650 addresses the Department of Public

Safety’s authority with respect to motor vehicle regulations, community crime~tip

programs, missing endangered persons procedures, firearms training and qualifications for

retired law enforcement officers carrying concealed weapons, a DNA profiling system,

crime laboratories, drug enforcement, regulation of boilers, an office for victims of crimes

and emergency communications systems. The Department of Public Safety has rules

relating to fireworks, amusement rides, elevators, gaming, boating and water skiing. §

ll C.S.R. 40.1.010, et seq. 111 fact, the Department of Public Safety is the agency that

promulgated the state minimum standards for law enforcement officers known as POST,

the “Peace Officer Standards and Training Program.” § Mo. REV. STAT. Section

590.010 and 11 C.S.R. 75~1.010, etseq.

13

By creating different departments to address “public safety” and “public health,”

the legislature has indicated that it considers these two different and distinct areas of

government authority. ln fact, throughout the revised statutes, the legislature has used

these terms in a way that demonstrates they are distinct, such as in the phrase “public health,

safety and welfare.” We must presume the legislature did not intend, therefore, for these

phrases to be synonymous or redundant and that each of these terms mean something

different §g§ Young v. Boone, 462 S.W.3d 783, 792-93 (Mo. App. W.D. 2015). Because

the legislature did not include in its grant of authority to counties in Section 192.300 the

power to enact ordinances that enhance public safety, and only used the term public health,

it must not have intended to confer-at least in this statute_the power to legislate on

matters of public safety. lt may not be possible to define ali the actions the legislature

intended to be covered by the phrase “enhance public health.” But we know at least that it

does not include that which is a matter of law enforcement because the legislature has

placed law enforcement squarely within the realm of public safety, as opposed to public

health. Compare l\/lo. REV. STAT. Chapters 192 and 650, supra Likewise, St. Louis

County’s charter itself recognizes that law enforcement is not a matter of public health, as

like the State, it too has separate departments for “community health and medical care” and

“police.” § ST. LOUIS CGUNTY CHARTER, Article lV.

The County’s reliance on information presented to the County Council as to the

impact of this Ordinance on public health does not aid its argument for how this was a valid

exercise of authority under Section 192.300.g The positive impact that improved law

8 Forrner Chief of Police for the City of St. Louis, Dr. Daniel Isom, and the Director of the St. Louis County

Health Department, Dr. Faisal Khan, expressed attire public hearing before adoption of the Ordinance their

belief that law enforcement standards would entrance the health of citizens in St. Louis County, 'i`he Cities

claim the “uns\vorn, unsubstantiated opinions of Dr. Khan and Dr. lsom” are not only irrelevant to the

14

enforcement may have on the public_including the extent to Which it improves the

community’s physical and mental well-being_is simply not what Was meant by “enhance

public health” in Section 192.300. To hold otherwise would be to broaden the scope of

authority beyond what the legislature intended by granting counties the power to make

“additional health rules” in Section 192.300.9 Thus, this Ordinance was not a valid exercise

of the County’s authority conferred by that statute.

All points are denied, and the judgment is affirmed

@rea /M,L

hostier DoWD Jn., Judged

Angela T. Quigless, P. .l. concurs with opinion of Judge Robert G. Dowd, Jr.

Lisa S. Van Amburg, J., concurs in separate concurring opinion.

determination of the validity of the Ordinance-as opposed to its reasonableness, which they claim is not

before usibut also insufficient to support a granth summary judgment in the County’s favor.

9 The Cities contend that linder the County’s theory of“public health,” Section 192.300 would allow a county

to legislate matters relating to municipal roads and sidewalks simply because someone traveling on them

could be injured or municipal parks simply because they provide healthy exercise opportunities As the Cities

put it, the legislature did not intend to hide such an “elephant” of unbridled authority in a “mouse hole” of

the term “enhance public health.”

15

In the Missourt Court of Appeals

Eastem Distrtct

DIVISION THREE

CITY OF OLIVET]`E, et al, ) No. ED104432

)

Respondents, ) Appeal from the Circuit Court of

) St. Louis County

vs. )

)

ST. LOUIS COUNTY, et al., ) Hon. Robert S. Cohen

)

Appellants. ) FILED: January 10, 2017

CONCURRING OPlNION

l concur in the majority opinion insofar as it holds that the ordinance is beyond the scope

of §192.300. ln my view, however, voter approval of the ordinance as an assumption of

municipal functions is required only by §2.180.21 of the County’s charter and not by Article VI

§18(0) of the Missouri Constitution.

As the majority notes, §2.180.2l of the charter authorizes the county to perform

municipal services and functions “when accepted by a vote of a majority of the qualified electors

. .” This requirement alone is fatal to the County’s position But regardless of whether an

earlier version of Article Vl §18(0) of the Missouri Corrstitutiori mirrored this language, l do not

construe the current version to mandate a vote. Missouri voters approved and adopted the current

version of §18(c) in 1970. lt states that, “When such a proposition is submitted to the voters of

the county[,] the ballot shall contain a clear definition of the power, function or service to be

performed and the method by which it will be financed.” I interpret this to mean that, when the

nature of the ordinance is such that it requires a vote under a county’s charter, then the ballot

measure should contain sufficient specifics to inform the voters’ decision. In other words, this

sentence simply prescribes the content of the ballot.

Therefore, 1 would opine that the ordinance does not exceed the county’s authority under

the Missouri Constitution, but voter approval is still required under the county’s charter.

taft sammy

Lisa Van Amburg, Judge