Quinn v. State of Mo., 88-1146

• Decision Date: 11 February 1988
• Docket Number: No. 88-1146,88-1146
• Parties: Robert J. QUINN, Jr., and Patricia J. Kampsen, individually and on behalf of all other similarly situated non-freeholder electors of St. Louis County, Missouri and of the City of St. Louis, Missouri, Appellees, v. The STATE OF MISSOURI; John D. Ashcroft, Governor of Missouri; Gene McNary, County Executive of St. Louis County, Missouri; Vincent C. Schoemehl, Jr., Mayor of the City of St. Louis, and Joseph S. Balcer, Robert L. Bannister, Sandra H. Bennett, Allen 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, Chairman, J.P. Morgan, Catherine Rea, Daniel Schlafly, Henry S. Stolar, Lucille Walton and Margaret Bush Wilson, Comprising the St. Louis City and County Board of Freeholders, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 425

839 F.2d 425

Robert J. QUINN, Jr., and Patricia J. Kampsen, individually

and on behalf of all other similarly situated non-freeholder

electors of St. Louis County, Missouri and of the City of

St. Louis, Missouri, Appellees, v. The STATE OF MISSOURI; John D. Ashcroft, Governor of

Missouri; Gene McNary, County Executive of St. Louis

County, Missouri; Vincent C. Schoemehl, Jr., Mayor of the

City of St. Louis, and Joseph S. Balcer, Robert L.

Bannister, Sandra H. Bennett, Allen 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, Chairman, J.P. Morgan, Catherine

Rea, Daniel Schlafly, Henry S. Stolar, Lucille Walton and

Margaret Bush Wilson, Comprising the St. Louis City and

County Board of Freeholders, Appellants.

No. 88-1146.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 10, 1988.

Decided Feb. 11, 1988.

Jordan Cherrick, St. Louis, Mo., for appellants.

Kevin O'Keefe & Jess W. Ullom, St. Louis, Mo., for appellees.

Before McMILLIAN, ARNOLD and FAGG, Circuit Judges.

PER CURIAM.

Appellee Robert J. Quinn, Jr. represents a class of persons who do not own real property in a class action suit alleging that Art. VI, Sec. 30(a) and (b) of the Constitution of the State of Missouri violates various provisions of the United States Constitution because it prevents the members of the class from being eligible to serve on the St. Louis Board of Freeholders (the Board). Quinn filed his original complaint on November 10, 1987, seeking declaratory relief. Quinn filed an amended complaint on January 21, 1988, which added several defendants and sought injunctive relief to enjoin any further actions of the Board. On January 25, 1988, the district court granted Quinn's request for a temporary restraining order (TRO), while denying the State of Missouri's motions for abstention or transfer or both. This court stayed the TRO on January 27, 1988, pending an expedited appeal by the State. For reversal, the State argues (1) that the district court should have abstained, and (2) that the district court abused its discretion in granting the TRO.

Quinn argues as a threshold matter that this court is without jurisdiction to hear the State's appeal from the district court's TRO. The law is, however, that where a TRO exceeds the ten-day limit provided in Fed.R.Civ.P. 65(b), and has the practical effect of a preliminary injunction, the appellate court may treat it as a preliminary injunction and exercise jurisdiction under 28 U.S.C. Sec. 1292(a)(1). Sampson v. Murray, 415 U.S. 61, 86-87 and n. 58, 94 S.Ct. 937, 951 & n. 58, 39 L.Ed.2d 166 (1974); Edudata Corp. v. Scientific Computers, Inc., 746 F.2d 429, 430 (8th Cir.1984) (per curiam); Waste Management, Inc. v. Deffenbaugh, 534 F.2d 126, 129 (8th Cir.1976). While Quinn argues that the State consented to the extension of the TRO, the State clearly objected to the issuance of any such order on the ground that no threat of an irreparable injury had been shown. Though perhaps this was not a specific objection to the duration of the TRO, the State certainly did not consent. See Connell v. Dulien Steel Products, 240 F.2d 414, 417-18 (5th Cir.1957). Furthermore, "[a]n appeal from an order granting or...