Election Board v. City of Lee's Summit

• Decision Date: 23 December 2008
• Docket Number: No. WD 69074.,WD 69074.
• Citation: 277 S.W.3d 740
• Parties: JACKSON COUNTY BOARD OF ELECTION COMMISSIONERS, by and through its Members Tammy L. BROWN, William J. BAKER, Charles E. DUMSKY, and Michael D. WHITEHEAD, Appellant, v. CITY OF LEE'S SUMMIT, Missouri, Respondent.
• Court: Missouri Court of Appeals

277 S.W.3d 740

JACKSON COUNTY BOARD OF ELECTION COMMISSIONERS, by and through its Members Tammy L. BROWN, William J. BAKER, Charles E. DUMSKY, and Michael D. WHITEHEAD, Appellant, v. CITY OF LEE'S SUMMIT, Missouri, Respondent.

No. WD 69074.

Missouri Court of Appeals, Western District.

December 23, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2009.

Application for Transfer Denied March 31, 2009.

Bradley Alan Constance, Independence, MO, for appellant.

Paul Anthony Campo, Lee's Summit, MO, for respondent.

Before THOMAS NEWTON, C.J., and RONALD HOLLIGER and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

The Jackson County Board of Election Commissioners (the "Board" or "Election Board") appeals the circuit court's judgment which concluded that the City of Lee's Summit, Missouri, had the authority to request that an ordinance be placed on the ballot for voter approval at the November 7, 2006 election. Because we conclude that the issue presented on appeal is moot, and was moot at the time the circuit court issued its declaratory judgment, we remand this matter to the circuit court with directions to vacate its judgment and dismiss this action.

I. Factual Background

The facts are not disputed by the parties. In the spring of 2006, five registered voters in Lee's Summit formed a Committee that sought to amend the City's Code of Ordinances to prohibit smoking in all workplaces and public places in Lee's Summit. The Committee drafted an initiative ordinance, which was submitted to the City on May 24, 2006, after the Committee obtained the number of voter signatures required by the City's Charter. Under § 10.6(a) of the City Charter, when an initiative petition is found sufficient, the City Council generally has two options: either (1) "adopt [the] proposed initiative ordinance without any change in substance"; or (2) "fix a date for holding the election to submit the proposed . . . ordinance to the voters of the city."

On August 10, 2006, the City Council adopted two ordinances addressing the smoking issue. The first, Ordinance No. 6250, banned smoking in workplaces and public places in the City with certain exceptions; one exception exempted restaurants (but only for seven years) and bars from the ban. The second, Ordinance No. 6251, was similar to Ordinance No. 6250, but repealed Ordinance No. 6250's exception for bars and restaurants. Section 3 of Ordinance No. 6251 provided "[t]hat this ordinance shall be referred to the people for approval and shall be in full force and effect from and after the date of its approval by a majority of the votes cast thereon," and directed the City Clerk to notify the Election Board of the passage of the ordinance in time for the issue to be placed on the November 7, 2006 ballot.

Also on August 10, 2006, and apparently as part of a negotiated resolution of the issue, the Committee withdrew its initiative ordinance, which pursuant to Charter § 10.6(d) caused the proposed ordinance to "have no further force or effect."

On August 28, 2006, the City Clerk notified the Board, pursuant to § 115.125,¹ that the City Council had called a special municipal election to be held on November 7, 2006, and requested that the Board place the following question on the ballot pursuant to Ordinance No. 6251:

Shall Article X of Chapter 17 of the Code of Ordinances of the City of Lee's Summit, Missouri be amended to prohibit smoking in all restaurants and bars in the City of Lee's Summit, MO, effective 120 days from and after the date of approval by a majority of the voters of the city?

On September 11, 2006, the Board filed the instant lawsuit in Jackson County Circuit Court against Lee's Summit, requesting a declaratory judgment as to whether the Board was required to place this issue on the November 7 election ballot.

The Board and Lee's Summit shared the view that the circuit court was not in a position to rule on the merits of the declaratory judgment action prior to the date on which the Board was required by law to make absentee ballots available for the November 2006 election. Accordingly, shortly after this lawsuit was filed they entered into an agreement, pursuant to which the Board agreed to place the issue on the ballot, as long as Lee's Summit "agreed not to argue mootness."

On November 7, 2006, over 70% of the voters of the City of Lee's Summit voted in favor of Ordinance No. 6251, and shortly thereafter the ordinance took full force and effect.

The City's Charter specifies two general methods by which an ordinance may be passed: (1) through voter approval of an ordinance proposed through the initiative process; or (2) through legislative action of the City Council and Mayor. Speaking generally, the Board's position is that the two methods specified in Lee's Summit's Charter are the exclusive means by which Lee's Summit Ordinances may be enacted, while the City contends that under Missouri Constitution art. VI, § 19(a), it may employ the hybrid approach it followed here, because that method is not prohibited by the Charter.

The circuit court tried the issues presented by the declaratory judgment action based on stipulated facts submitted by the parties. On October 15, 2007, the court issued its judgment, which found that the City "had the authority to call the November 7, 2006 election pertaining to Ordinance No. 6251 . . . and the election so held was authorized by law." This appeal followed.

II. Analysis

The Board argues that the circuit court's judgment erroneously permits Lee's Summit to enact ordinances through a method (City Council passage followed by voter approval) not authorized—and indeed prohibited—by the City Charter. Because we conclude that this lawsuit is moot, we do not address the merits of this issue.

The trial court may grant declaratory relief only if presented with:

(1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake, "consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief"; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law.

Lane v. Lensmeyer, 158 S.W.3d 218, 222 (Mo. banc 2005)(emphasis added; citation omitted).

We have an independent obligation to determine whether a case presents "a real, substantial, presently-existing controversy," or is instead moot.

A threshold question in any appellate review of a controversy is the mootness of the controversy. In Missouri, it is well-settled that the courts do not determine moot cases. A moot case raises the issue of justiciability, and therefore courts may dismiss it sua sponte.

Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App. E.D.2003) (citations and quotations omitted). "[A]ppellate courts do not sit as moot courts determining speculative issues for the benefit of some other case at some other time." Henning v. Bd. of Election Comm'rs of St. Louis County, 787 S.W.2d 742, 744 (Mo.App. E.D.1989); In re Duvall, 178 S.W.3d 617, 622 (Mo.App. W.D.2005) ("we `do not decide questions of law disconnected from the granting of actual relief'")(quoting State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998)).

As we recently explained in State ex rel. Ag Processing, Inc. v. Public Service Commission, 276 S.W.3d 303 (Mo. App. W.D. 2008):

A case is moot if the decision would have "no practical effect upon an existent controversy." When an event occurs that makes a court's decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed.

Id. at 306 (citations omitted); see also Asher v. Carnahan, 268 S.W.3d 427, 429-30 (Mo.App. W.D.2008)(quoting River Fleets, Inc. v. Creech, 36 S.W.3d 809, 813 (Mo.App. W.D.2001)). "The doctrine is triggered when some event `so alters the position of the parties that any judgment rendered [merely becomes] a hypothetical opinion.'" Thruston v. Jefferson City Sch. Dist., 95 S.W.3d 131, 134 (Mo.App. W.D. 2003) (quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)).

The Board's declaratory judgment petition seeks a determination as to the legality of the measure Lee's Summit sought to place on the ballot for the November 7, 2006 election. That issue was moot by the time the circuit court issued its judgment in October 2007, however, because the election had already occurred and the ordinance had been passed, based on the Election Board's agreement to place the issue on the ballot. See, e.g., Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)(holding that because "the April 7, 1998 municipal election was held[,] [a] decision by this court on the issue of whether the County Clerk was mandated to place [a particular] question [proposed by citizen petition] on the April 7, 1998 ballot would, therefore, have no practical effect upon an existent controversy or grant relief to [plaintiff] and would merely be an advisory opinion").

The parties' factual stipulation recites that the Election Board placed the issue on the ballot in exchange for Lee's Summit's agreement "not to argue mootness." "Parties cannot," however, "confer subject matter jurisdiction upon a court by their actions or agreements, where such jurisdiction does not otherwise exist." Schneidler v. Feeder's Grain Supply, Inc., 24 S.W.3d 739, 741 (Mo.App. E.D.2000). This court has the obligation to raise a mootness issue sua sponte, despite the parties' agreement not to contest it. Kinsky, 109 S.W.3d at 195; State ex rel. County of Jackson v. Mo. Pub. Serv. Comm'n, 985 S.W.2d 400, 403 (Mo.App. W.D.1999)(rejecting County's request that we decide the merits in a natural gas rate matter "[d]espite the mootness of this case").

By placing the smoking-ban question...