State ex rel. Chastain v. City of Kansas City

• Decision Date: 05 May 1998
• Docket Number: No. WD,WD
• Citation: 968 S.W.2d 232
• Parties: STATE ex rel. Clay CHASTAIN, et al., Respondents, v. CITY OF KANSAS CITY, Missouri, et al., Appellants. 53460.
• Court: Missouri Court of Appeals

Page 232

968 S.W.2d 232

STATE ex rel. Clay CHASTAIN, et al., Respondents, v. CITY OF KANSAS CITY, Missouri, et al., Appellants.

No. WD 53460.

Missouri Court of Appeals Western District.

Submitted Feb. 10, 1998.

Decided May 5, 1998.

William D. Geary, Kansas City, for Appellant City of Kansas City.

Stanley D. Davis, Kansas City, for Appellant Union Station Assistance Corp.

Daniel L. Franco, Kansas City, for respondent.

Before EDWIN H. SMITH, P.J., and ELLIS and SMART, JJ.

SMART, Judge.

Before this Court is the consolidated appeal of the City of Kansas City and the Union Station Assistance Corporation, both of whom appeal the trial court's issuance of a peremptory writ of mandamus on October 13, 1996. In the writ order, the court directed the City to take the steps necessary to cause the initiative proposed by Respondents to be placed on the November 5, 1996 ballot. Finding that the controversy is moot and does not fall within the recognized exceptions to the rule demanding dismissal of moot cases, we dismiss the consolidated appeal of City and USAC and vacate the trial court's judgment.

Factual Background

The present case arose from the prolonged effort to restore Kansas City's historic Union Station. In the 1970s, the City of Kansas City ("City") and Trizec Corporation entered into a contract to redevelop Union Station. Having become dissatisfied with Trizec's performance by 1988, the City instituted a suit to recover damages for Trizec's alleged failure to perform its obligations under the redevelopment contract. On January 6, 1994, the City, acting through the City Council, passed Ordinance 940028, which authorized the City Attorney to execute a settlement agreement reached in the Trizec litigation. The terms of the settlement agreement required Trizec to convey Union Station to Union Station Assistance Corporation ("USAC"), a new non-profit corporation dedicated to the renovation of Union Station. The same ordinance also made provision for a new plan to redevelop Union Station by authorizing the City to enter into a development agreement ("Agreement") with USAC for the purpose of restoring Union Station.

The Agreement was executed on June 28, 1994. USAC agreed to accept the terms of the settlement agreement between City and Trizec. The City and USAC agreed that USAC would be responsible for devising design, construction, and funding plans for the project. These plans were to be submitted to a designated agent of the City for approval. The City also gave USAC complete and exclusive control of the work so long as the Agreement remained in effect.

On April 29, 1994, Respondent Clay Chastain brought an action in Jackson County Circuit Court seeking a determination that Ordinance 940028 was illegal and praying for injunctive relief, including a temporary restraining order ("TRO") to prevent implementation of the terms of the ordinance. On May 11, 1994, the trial court denied the TRO and dismissed the action with prejudice.

Respondents then commenced an effort to put before the voters of Kansas City a new ordinance that would have extended the City's 1/2 cent sales tax for five years beginning on January 1, 2001, and would have provided the tax revenue exclusively to the Liberty Memorial and the Union Station redevelopment efforts. Because the full effect of the text of the proposed ordinance was disputed at trial, we allow the proposed ordinance to speak for itself:

Shall the City of Kansas City, Missouri continue to impose a city sales tax of one half percent, effective for five years from January 1, 2001 through December 31, 2005, to be used solely for the restoration of Liberty Memorial as a World War I museum and memorial and Union Station as a transportation and science center, which shall include preserving completely intact the Head House, East Wing, West Wing and North Wing of the Union Station, with 25% of the sales tax proceeds each year to be used for Liberty Memorial restoration and the remaining 75% of the sales tax proceeds each year to be used for Union Station restoration, including use of the sales tax proceeds to retire bonded indebtedness whether incurred before or after the effective date of the sales tax?

The Respondents submitted petitions containing the signatures of 4,670 registered Kansas City voters in favor of placing the proposal on the August 1995 ballot to the City Clerk. Because this number constituted more than 5% of the voters who voted in the most recent mayoral election, as required by the Kansas City Charter for ballot initiatives, the Clerk certified the petitions as being sufficient. The Charter allows the City Council 60 days to study the proposed initiative before it must pass the proposed initiative in its original or amended form or place the initiative on the ballot. The City Council failed to act before the expiration of the 60-day period, which extended beyond the August 1995 election date.

On August 31, 1995, the Respondents filed suit in the Circuit Court of Jackson County against the City, the Mayor of Kansas City, various members of the City Council, the City Clerk, and several board of election commissioners responsible for conducting city elections. The Respondents sought (1) a writ of mandamus ordering the City to place the proposal on the November 7, 1995, ballot, and (2) damages from the City and the Council members under 42 U.S.C. § 1983 for the alleged deprivation of the right to present the initiative to the voters.

The trial court held a hearing on September 6, 1995. On September 13, 1995, the court issued an order requiring the City to place the proposal on the August 1996 ballot. The defendants moved for reconsideration of the order, and USAC moved to intervene. The court granted USAC's motion for intervention on February 8, 1996. In its first amended answer of February 21, 1996, USAC filed a cross-claim against the City, alleging anticipatory breach of contract and praying for specific performance of the contract.

The court took additional evidence on September 16, 17, and 19, 1996. On October 3, 1996, the court issued a peremptory writ of mandamus directing the City to take the steps necessary to place the proposal on the November 5, 1996, ballot. In the same order, the court dismissed without prejudice the damages claim against City and the members of the City Council. On October 4, 1996, the City filed a motion to amend the order by removing a specific election date and substituting a reference to "the next appropriate municipal or state election." The trial court denied this motion to amend on October 17, 1996. The City and USAC filed these appeals on October 21, 1996. That same day, USAC posted the $5,000 supersedeas bond fixed by the trial court for stay of the execution of the writ. The initiative did not appear on the ballot in any of the City's election jurisdictions on November 5, 1996. This Court consolidated the appeals on November 14, 1996.

The Respondents subsequently commenced a second petition drive to get a substantially similar ordinance on the November 4, 1997 ballot. ¹ Their efforts were successful, and the City Council voted to place both the earlier and the later proposed ordinances, which were practically identical, on the November 1997 ballot. Fearing voter confusion from the placement of two almost identical proposed ordinances on the same ballot, Respondents sought to eliminate the first proposed ordinance so that only the second would appear on the ballot for November of 1997. City and Respondents executed an agreement on September 17, 1997 containing the following relevant language:

The Committee of Petitioners has determined that placement of the first matter on the November 4, 1997 ballot is not desired now or in the future. The City of Kansas City has determined that placement on the ballot is not necessary if the Committee of petitioners will not require placement of the first matter before the voters should the Missouri Court of Appeals find that the matter should be presented to the voters.

Both parties agreed that the removal of the first proposed ordinance from the November 1997 ballot was done "with no intention to waive any claim or defense the parties may have relating to any legal issue now or in the future before a court."

On December 19, 1997, Respondents refiled their damage claim against City and members of the City Council in Jackson County Circuit Court. Respondents allege that the defendants breached their duty to place the ordinance on the ballot in 1995 and seek compensatory damages, punitive damages, and attorney fees. That claim was still pending as of the submission of the present appeal.

In its appeal, City raises four allegations of trial court error: (1) the proposed ordinance should have been required to meet the more stringent procedural requirements for a referendum rather than the easier requirements for an initiative; (2) the proposed ordinance contained administrative issues that may not be submitted to voters in an initiative; (3) the proposed ordinance was facially illegal in that it impaired USAC's vested contract rights under Ordinance 940028 and the Agreement; and (4) the statutory deadline for giving notice to election authorities under § 115.125, RSMo Supp.1996, had already passed prior to the trial court's order to place the proposed ordinance on the November 5, 1996, ballot.

USAC's original appeal brief raised many of the same arguments while also citing additional alleged errors the trial court made in issuing the peremptory writ of mandamus. As its final point of error, USAC contends that the trial court erred in dismissing USAC's cross-claim against the City for anticipatory breach of contract. After filing its original brief, however, USAC filed a supplemental brief praying this court for dismissal of the appeal as moot. USAC cites the agreement entered into by the City and Respondents as to the November 1997 ballot as the event that mooted this...