St. Louis County, Mo. v. CITY OF TOWN

• Decision Date: 29 June 1984
• Docket Number: No. 83-2552C(5).,83-2552C(5).
• Citation: 590 F. Supp. 731
• Parties: ST. LOUIS COUNTY, MO., Gene McNary, Co. Executive, James Kuenzle, Sandra Rea, Ernestine Beckman, Jan Costello, Gladys Wade, Plaintiffs, v. The CITY OF TOWN AND COUNTRY, The City of Eureka, The City of Creve Coeur, The City of St. Charles, The City of Overland, The City of Olivette, The Village of Twin Oaks, Richard King, Dir. of Revenue, State of Missouri, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

590 F. Supp. 731

ST. LOUIS COUNTY, MO., Gene McNary, Co. Executive, James Kuenzle, Sandra Rea, Ernestine Beckman, Jan Costello, Gladys Wade, Plaintiffs, v. The CITY OF TOWN AND COUNTRY, The City of Eureka, The City of Creve Coeur, The City of St. Charles, The City of Overland, The City of Olivette, The Village of Twin Oaks, Richard King, Dir. of Revenue, State of Missouri, Defendants.

No. 83-2552C(5).

United States District Court, E.D. Missouri, E.D.

June 29, 1984.

COPYRIGHT MATERIAL OMITTED

Thomas W. Wehrle, Co. Counselor, Andrew J. Minardi, Assoc. Co. Counselor, Robert E. Britt, St. Louis, Mo., for plaintiffs.

J. Leonard Walther, Clayton, Mo., George A. Weible, City Atty., St. Charles, Mo., Robert L. Hartzog, Clayton, Mo., Gerard F. Hempstead, Jerome Wallach, St. Louis, Mo., Edward D. Robertson, Phillip K. Gebhardt, Jefferson City, Mo., Shulamith Simon, Robbye E. Hill, Thomas M. Utterback, St. Louis, Mo., for defendants.

MEMORANDUM

LIMBAUGH, District Judge.

The matters before the Court are the joint motion to dismiss of the defendant municipalities, the motion to dismiss of defendant Richard King and the State of Missouri, the motion to dismiss of defendant City of Town and Country, and the motion to dismiss of defendant City of Eureka. All of the parties have submitted memoranda in support of their positions. The American Planning Association was also given leave to file an amicus curiae brief on behalf of the plaintiffs. This action will be dismissed because the complaint fails to state a claim upon which relief may be granted.

Plaintiff St. Louis County is a first-class county operating under a charter form of government pursuant to Article VI, Section 18 of the Missouri constitution. Within the County are ninety cities, towns and villages, which are referred to by the parties as the incorporated area. The remainder of the County is unincorporated. Because of its charter county status, the County government provides a number of municipal services within the unincorporated area. These services include police protection, health and community services, planning and zoning (including a comprehensive development plan), public works, parks and recreation, and road and highway planning, development and maintenance. The County is authorized to provide these services by its charter and by Article VI, Section 18(c) of the Missouri Constitution. Gene McNary, the County Executive, is also a plaintiff. The other five plaintiffs are registered voters who reside within the unincorporated area of the County. The plaintiffs are challenging the constitutionality of the election provisions in two Missouri annexation statutes, §§ 71.015 and 71.870, R.S.Mo.Cum.Supp.1983.

Among the defendants are seven municipalities, six of which are located within the County. These six include the City of Town and Country and the City of Eureka, the two defendant cities mentioned previously. The seventh municipality, St. Charles, is outside of and adjacent to the County. Each of these municipalities has annexed or is in the process of annexing unincorporated territory located within the County. Each of the six municipalities within the County has held or will hold an annexation election pursuant to § 71.870 (or a similar predecessor statute), which sets forth the procedure for annexation elections held by County municipalities. St. Charles also has held an annexation election, but did so pursuant to a different statute, § 71.015, as St. Charles is located outside the County. Section 71.870 applies only to elections held by municipalities within a first class charter county whose population exceeds 500,000; § 71.015 governs elections by municipalities in the rest of the state.

Although §§ 71.870 and 71.015 are somewhat different, they may be treated as identical for the purpose of this lawsuit, as the relevant provisions establish similar methods of holding annexation elections. In an annexation election, the annexation must be approved by a majority of those voting who reside in the annexing municipality and by a separate majority of those voting who reside in the unincorporated territory to be annexed. See §§ 71.015, .870. These two groups of residents are the only individuals allowed to vote in the annexation election. Significantly, residents of the unincorporated area of the County are not allowed to vote, unless they are among the few who reside in the unincorporated territory to be annexed. The five plaintiff registered voters reside in the unincorporated area of the County, do not reside in any of the territories to be annexed, and therefore are not able to vote in any of the annexation elections. The plaintiffs contend that this disenfranchisement of the residents of the unincorporated area of the County is a denial of the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment.

Besides the municipalities, the State of Missouri and Richard King, Director of Revenue of the State of Missouri, are named as defendants. King is a defendant because he must distribute certain revenues pursuant to § 66.620, R.S.Mo.Cum. Supp.1983, and his distribution of those revenues is affected by the boundary changes resulting from the annexations.

This lawsuit follows the Missouri Supreme Court decision in City of Town and Country v. St. Louis County, 657 S.W.2d 598 (Mo. banc 1983). Missouri law provides for judicial review of municipal annexations. § 71.015, R.S.Mo.Cum.Supp.1983. City of Town and Country was such a judicial review proceeding. It concerned the same annexations by the City of Town and Country which are under attack in this lawsuit. Prior cases, such as City of Olivette v. Graeler, 369 S.W.2d 85 (Mo.1963), had held that the reviewing court must consider the interests of the County as a whole in determining the reasonableness of a proposed intra-County annexation. City of Town and Country significantly circumscribed this standard of review. In light of this, the plaintiffs believe that their interests are no longer adequately protected in state proceedings, so they seek enfranchisement of all residents of the unincorporated area in order to protect the interests of the County as a whole.

I.

Before reaching the merits of the plaintiffs' claims, several preliminary matters need to be addressed. First, the defendants contend that the County and McNary lack standing to sue. The main standing issue is that both plaintiffs are raising the constitutional rights of third parties: the plaintiffs' case is based on voting rights, but neither the County nor McNary is asserting a personal right to vote. The standing of the other five plaintiffs is not challenged, however, and these five voters meet all of the jurisdictional and prudential requirements of standing set forth in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-75, 102 S.Ct. 752, 757-60, 70 L.Ed.2d 700 (1982). As some of the plaintiffs have standing and this action is being dismissed in its entirety, it is unnecessary to decide if the County and McNary also have standing. Cf. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977). If this action were not being dismissed, it would be necessary to decide if the County and McNary had standing in order to determine whether they could participate in further proceedings. See School District of Kansas City v. State of Missouri, 460 F.Supp. 421, 437 (W.D.Mo.1978), in which this was done.

The State of Missouri has also moved to dismiss on the separate ground that it is not a proper party defendant. The State will be dismissed because it is not subject to suit. The Eleventh Amendment bars suit directly against a state in federal court unless the state has consented to suit or Congress has abrogated state immunity by a statute enacted to enforce the Fourteenth Amendment. Pennhurst State School and Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 906-908, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). No consent has been shown. The plaintiffs seem to argue that the State may be sued under 28 U.S.C. § 1331, but § 1331 does not override state immunity. Neither does 42 U.S.C. § 1983, another statute under which this suit is brought. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Only "persons" may be sued under § 1983 and a state is not a "person". Id. (by implication); Seltzer v. Ashcroft, 675 F.2d 184, 185 (8th Cir.1982); Aubuchon v. State of Missouri, 631 F.2d 581 (8th Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981).

The defendants also contend that the claims of the County and McNary are barred by res judicata. As stated earlier, Missouri law provides for judicial review of annexations. State court proceedings have been held regarding the annexations of defendants City of Town and Country and City of Eureka. In those proceedings, the County unsuccessfully challenged these two cities' annexations on state law grounds, but did not raise the constitutional issues now litigated. The defendants argue that the failure to raise the constitutional questions, at the first opportunity, bars the claims of the County (and therefore also its Executive, McNary). But it is unnecessary to decide this point because the defendants do not contend that the other five plaintiffs' claims are barred by res judicata and this action will be dismissed in its entirety on other grounds.

By a separate motion to dismiss, the City of Town and Country argues that all of the plaintiffs' claims are barred by the applicable statute of limitations. There being no relevant federal statute of limitations, the applicable statute is the most appropriate one under Missouri law, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), which in turn is the...