Quinn v. State of Mo.

• Decision Date: 15 March 1988
• Docket Number: No. 87-4492-CV-C-5.,87-4492-CV-C-5.
• Parties: Robert J. QUINN, Jr. and Patricia J. Kampsen, Plaintiffs, v. The STATE OF MISSOURI, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

681 F. Supp. 1422

Robert J. QUINN, Jr. and Patricia J. Kampsen, Plaintiffs, v. The STATE OF MISSOURI, et al., Defendants.

No. 87-4492-CV-C-5.

United States District Court, W.D. Missouri, C.D.

March 15, 1988.

COPYRIGHT MATERIAL OMITTED

Kevin M. O'Keefe, St. Louis, Mo., and Jess W. Ullom, Clayton, Mo., for plaintiffs.

Simon B. Buckner, Asst. Atty. Gen., Kansas City, Mo., for defendants State of Mo. and Governor John D. Ashcroft.

Andrew J. Minardi, Associate County Counselor, Clayton, Mo., for defendant Gene McNary.

Eugene P. Freeman, Deputy City Counselor, St. Louis, Mo., for defendant Vincent C. Schoemehl, Jr.

Kenneth F. Teasdale and Thomas Cummings, St. Louis, Mo., for defendants Members of St. Louis City/County Bd. of Freeholders.

ORDER

SCOTT O. WRIGHT, Chief Judge.

This is a class action for declaratory and injunctive relief in which plaintiffs challenge the constitutionality under the United States Constitution of Article VI, §§ 30(a) and 30(b) of the Missouri Constitution of 1945, as amended. These sections provide for the selection and operation of a board of freeholders ("Board") to propose a plan for intergovernmental relations between St. Louis County and the City of St. Louis, and for the submission of such plan to the electorate of those political subdivisions. This Court has jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1331 and § 1343(3).

The named plaintiffs include Robert J. Quinn and Patricia J. Kampsen. Both plaintiffs are residents of St. Louis County, Missouri, and are taxpayers, registered voters and electors of St. Louis County, and non-freeholders, owning no real property. They bring this case on their own behalf and on behalf of the entire class consisting of resident taxpayers, electors and non-freeholders of St. Louis County, Missouri, and of the City of St. Louis, Missouri, and consisting of non-freeholder residents of the State of Missouri not residing in either the City of St. Louis or St. Louis County.

The State of Missouri has been named as a defendant because §§ 30(a) and (b) is a state constitutional enactment, adopted on November 4, 1924. Section 30(a) was amended November 8, 1966.

Defendant John D. Ashcroft is Governor of the State of Missouri; Defendant Gene McNary is the County Executive of St. Louis County; and Defendant Vincent C. Shoemehl, Jr. is the Mayor of the City of St. Louis. These defendants are the authorities responsible for appointing members to the board of freeholders, organized pursuant to §§ 30(a) and (b).

Defendants Joseph C. Balcer, Robert L. Bannister, Sandra H. Bennett, Alan S. Boston, Claude Brown, William G. Cocos, Jr., Jo Curran, Thomas P. Dunne, C. Fran Emerson, Gretta Forrester, Albert H. Hamel, William J. Harrison, Wayne L. Millsap, J.P. Morgan, Catherine Rea, Daniel Schlafly, Henry S. Stolar, Lucille Walton and Margaret Bush Wilson are members of the board of freeholders ("the Board").

This action was originally filed on November 10, 1987, and amended on January 21, 1988, to name the appointing authorities and board members as additional defendants. Plaintiffs also voluntarily dismissed William L. Webster, Attorney General of the State of Missouri, as a defendant on January 21, 1988. On January 25, 1988, this Court issued a temporary restraining order which was affirmed and modified by the United States Court of Appeals for the Eighth Circuit on February 11, 1988, 839 F.2d 425. The modified restraining order was continued after a full trial on the merits on February 17, 1988.

I. CLASS CERTIFICATION AND STANDING

Plaintiffs seek to have this action certified as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The Court first concludes that all prerequisites set forth in Rule 23(a) have been met.¹

In evaluating whether the numerosity requirement is met, the Court considers the number of persons in a proposed class, the nature of the action and the inconvenience of trying individual suits. The Court finds that the number of non-freeholder taxpayer electors who reside in the City of St. Louis, St. Louis County, and the State of Missouri is sufficiently numerous. No arbitrary rules regarding the necessary size of classes have been established. Paxton v. Union National Bank, 688 F.2d 552, 559 (8th Cir.1982).

The commonality requisite set forth in Rule 23(a) does not demand that every question of law or fact be common to every member of the class. Id. at 561. Rather, the issues are sufficiently common "where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." Id.

Similarly, the claims of the representative parties are typical of those of the class if they emanate from the same "legal theory, remedial theory or offense" as those they represent. U.S. Fidelity & Guaranty v. Lord, 585 F.2d 860, 870 (8th Cir.1978). Here, the necessary commonality and typicality exist where the challenged constitutional provision requires that one must be a freeholder, or real property owner, to be appointed as a member of the board of freeholders. All class members, as non-freeholders, would be automatically excluded, even if they were otherwise qualified.

The fourth component of Rule 23(a) focuses on whether the class representatives have common interests with the class members and would vigorously prosecute the interests of the class through qualified counsel. Paxton, 688 F.2d at 562-63. Here, there are no apparent conflicts with the interests of the named plaintiffs and the rest of the class within the scope of this litigation.

Further, this is the type of case appropriate for a 23(b)(2) class since the defendants have acted on grounds generally applicable to all members of the class and final injunctive and declaratory relief would be the appropriate remedy.² Hence, plaintiffs are properly named representatives who may act on behalf of the following class, which the Court now certifies:

Resident taxpayers, electors and non-freeholders of St. Louis County, Missouri, and of the City of St. Louis, Missouri and consisting of non-freeholder residents of the State of Missouri not residing in either the City of St. Louis or St. Louis County.³

In addition to opposing class certification, Defendant McNary has also challenged plaintiffs' standing to sue, alleging that "there is no case or controversy for this Court to decide and any proceeding by this Court would be contrary to Article III of the United States Constitution." Supplemental Answer of Defendant Gene McNary to Plaintiffs' Second Amendment by Interlineation of First Amended Class Action Complaint. This answer was filed February 25, 1988. At the hearing on February 17, 1988, this same issue was raised by counsel for the Board.

However, previous to these dates, these defendants had filed as plaintiffs in a parallel case in State Court on February 16, 1988, which involves identical parties and addresses the same federal question as in this suit. In the petition in the Circuit Court of St. Louis County, the following is alleged:

20. A controversy therefore presently exist sic between Plaintiffs and Defendants as to whether the Board is a constitutionally constituted body and whether Plaintiff Board Members were properly appointed and whether the Plaintiff Board Members can exercise the mandate given to them by the people of the County of St. Louis and City of St. Louis.

21. The interests of Plaintiffs and Defendants are in fact adverse, the parties hereto have legally protectable interests involved, and it is timely that a judicial determination be made of the questions involved.

These averments certainly rebut any objections to judiciability. Under Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976), plaintiffs must allege an "injury in fact, that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Article III jurisdiction." In order to have standing:

(1) Plaintiff must allege an actual or threatened injury as a result of the conduct of the defendant,

(2) the injury alleged by plaintiff must be fairly traceable to the action of the defendant that is challenged in the lawsuit, and (3) the injury alleged by plaintiff must be likely to be redressed by a favorable decision of the court.

Belles v. Schweiker, 720 F.2d 509, 513 (8th Cir.1983), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 752 (1982).

Moreover, in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), the Supreme Court explicitly upheld a class of non-freeholders' standing to challenge a similar restriction for membership on a school board, even though no allegation was made that the representative nonfreeholder wished to serve on the board or that he was harmed in any other way by the freeholder limitation. Here, Article III requirements are satisfied.

II. VENUE

Defendant McNary's contention that venue in this action does not lie in the Western District of Missouri also must be rejected.

Title 28 U.S.C. § 1391(b) states that "a civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." However, in civil actions not of a local nature where, as here, all defendants reside within the state but in different districts, § 1392(a) permits venue in any district where one or more defendants reside. This provision is satisfied where plaintiffs challenge the constitutionality of a state constitutional provision and defendant John Ashcroft, the Governor, and defendant Morgan, a board member, reside in the Western District of Missouri.

The Court is not persuaded by defendant McNary's claim that this is a "local...