Wilson v. City of Columbia, No. 2:14-cv-04220-NKL

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Writing for the CourtNANETTE K. LAUGHREY United States District Judge
Docket NumberNo. 2:14-cv-04220-NKL
PartiesBETTY WILSON, et al., Plaintiffs, v. CITY OF COLUMBIA, et al., Defendants.
Decision Date21 September 2015

BETTY WILSON, et al., Plaintiffs,
v.
CITY OF COLUMBIA, et al., Defendants.

No. 2:14-cv-04220-NKL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

September 21, 2015


ORDER

Plaintiffs Betty Wilson and Michael MacMann participated in a referendum petition process to repeal ordinances passed by the Columbia City Council. The ordinances were eventually repealed by the Council. Nonetheless, the Plaintiffs claim that the Defendants, City of Columbia and City Manager Mike Matthes, interfered with the referendum process and thereby violated the Plaintiffs' rights under the City Charter, the Missouri Constitution, and the First and Fourteenth Amendments to the U.S. Constitution. The Defendants move for summary judgment. [Doc.42.] Summary judgement is granted in their favor.

I. Relevant Facts 1

On March 19, 2014, Ordinance 022010 (Ordinance A) was approved by the City Council. It authorized the City Manager to execute an agreement with Opus Development Company, LLC. The agreement stated that there were inadequate water, fire protection, electric, storm water, and sanitary sewer facilities to serve the student housing project that Opus wanted to build downtown. To ensure adequate infrastructure for the increased demand of the new project, Opus

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agreed to contribute $450,000 for infrastructure improvements in the area. The City agreed to permit construction of the project pursuant to the terms of the agreement and applicable law, "provided all requisite permits have been issued by the City[.]" [Doc. 51-1, Exhibit E.]

A referendum petition for repeal of Ordinance A, began circulating within a week. On May 29, 2014, the proponents of this first referendum petition (Referendum A), received certification of the requisite number of signatures needed to submit the matter to a vote of the people.

Before that certification, Defendant Matthes signed the Opus Development Agreement authorized by Ordinance A, knowing that Referendum Petition A was circulating. Mayor McDavid also publicly criticized the repeal effort as "reckless and irresponsible." [Doc. 51-18, p. 46.] In addition, on May 19, 2014, Ordinance 022071 (Ordinance B) was approved by the City Council. Ordinance B was in all material ways the same as Ordinance A, the subject of the ongoing referendum process. Ordinance B also contained a contingency. It provided that if no referendum was filed to repeal Ordinance B, then Ordinance A was automatically repealed. [Doc. 51-2, p. 1.]

At the time Ordinance B passed, Ordinance A was still in effect. Plaintiffs began gathering signatures to repeal Ordinance B and this second referendum petition (Referendum B) was certified July 31, 2014.

Prior to Referendum B being certified, the City Council repealed Ordinance A pursuant to Section 133 of the City Charter. Thereafter, on July 7, 2014, the City Council adopted a resolution that authorized the temporary closure of certain sidewalks and parking lanes around the construction site. At some point, Opus also applied for and received necessary permits pursuant to administrative procedures. These permits included a land disturbance permit, demolition permit, footings and foundation permit, and building permit.

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The City Council voted to repeal Ordinance B on August 18, 2014, pursuant to Section 133 of the City Charter. The development agreement authorized by Ordinance B was never executed by the City.

II. Plaintiffs' claims

The Plaintiffs claim that the Defendants interfered with their rights to participate in the referendum process and thereby violated their First and Fourteenth Amendment rights, as well as rights under the Missouri Constitution and the City Charter. They contend that once citizens exercise their referendum rights, the City could not constitutionally interfere with the process by making comments about the referendum or by introducing a second ordinance that was materially the same as the ordinance the petitioners were seeking to repeal. They also contend that Ordinance B was an effort to coerce the Plaintiffs to give up their right to participate in the referendum process by conditioning repeal of Ordinance A on no referendum petitions being filed to repeal Ordinance B. Finally they claim that Mayor McDavid intentionally interfered with the referendum process when he criticized the petitioners as reckless and the Defendants did likewise when they authorized permits to Opus during the referendum process.

III. Discussion

As a preliminary matter, it is necessary to identify what referendum rights the Plaintiffs have under the City Charter and state law.

The Missouri Constitution, Article VI, § 19, provides that a city with a charter form of government shall "have all powers which the general assembly of the state of Missouri has authority to confer..., provided such powers are consistent with the constitution of the state and are not limited or denied either by the charter ... or by statute." Id. See also, City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. 1996) (en banc). Neither the Missouri Constitution, nor any state statute, nor the Columbia City Charter gives the citizens of Columbia an unlimited right to

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seek a vote of the people concerning actions by the City administration or the City Council. Opportunities for direct democracy only exist if granted by the City Charter in a manner consistent with state law. State ex rel. Powers v. Donohue, 368 S.W.2d 432, 434 (Mo. 1963) (en banc); State ex rel. Chastain, v. City of Kansas City, 289 S.W. 3d 759 (Mo. Ct. App. 2009); State ex rel. Petti v. Goodwin-Rafferty, 190 S.W.3d 501, 504-05 (Mo. Ct. App. 2006);

The Columbia City Charter authorizes the voters to approve or reject most ordinances by referendum according to the following relevant provisions:

Section 128. Referendum.

The voters shall have power to approve or reject at the polls any ordinance passed by the council, ... such power being known as the referendum....

Section 130. Filing and Certification of Petitions.

Within thirty (30) days after a [referendum] petition is filed, the city clerk shall determine whether ... the petition is signed by a sufficient number of registered voters. After completing examination of the petition, the city clerk shall certify the result thereof to the council at its next regular meeting.

***

Section 133. Effect of a Referendum Petition.

When a referendum petition has been certified as sufficient, the ordinance specified in the petition shall not become effective, or, if it shall have gone into effect, further action thereunder shall be suspended until the ordinance referred has been approved by the voters as hereinafter provided. The council shall proceed forthwith to reconsider the referred ordinance, and its final vote upon such reconsideration shall be taken within thirty (30) days after certification and shall be upon the question: "Shall the ordinance specified in the referendum petition be repealed?"

If the council shall fail to repeal an ordinance specified in any referendum petition, such repeal ordinance shall be submitted without alteration to the voters of the city at the next election provided for by state law....

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***

Section 135. Effect of Vote.

If a majority of the voters voting on a proposed initiative ordinance or referred ordinance shall vote in favor thereof, it shall thereupon be an ordinance of the city, and shall, unless otherwise specified, become effective as indicated in Section 15 of this charter. No such ordinance shall be amended or repealed for six (6) months, except by unanimous vote of the council.
Doc. 45, pp. 1-3.] There is nothing in the City Charter that permits a referendum to repeal a building permit granted by the City.2

In State ex rel. Petti v. Goodwin-Rafferty, 190 S.W.3d 501, 504-05 (Mo. Ct. App. 2006), the Missouri Court of Appeals further amplified how a city charter defines the right of its citizens to engage in direct democracy. In that case, the Florissant city council approved an ordinance that changed the zoning of certain property from single family to commercial, to allow a shopping center development project. Objecting to the development project, Florissant residents gathered signatures for a referendum petition seeking to have the new zoning ordinance set aside. The city clerk rejected the petition on the basis that the city charter explicitly excluded zoning ordinance amendments from the referendum process. The Court of Appeals held that because Florissant's charter explicitly excluded zoning ordinances from the referendum process, and the exclusion was not unlawful, the city clerk could not be compelled to accept and process the plaintiffs' referendum petition.

Similarly, in State ex el. Powers v. Donohue, 368 S.W.2d 432, 434 (Mo. 1963) (en banc), the Missouri Supreme Court held that St. Louis County citizens did not have a right to amend a county zoning ordinance by initiative petition to prevent rezoning a specific piece of property. The initiative proponents had argued that "[t]o deny of the citizens of this state the right to

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correct zoning injustices through the initiative procedure would be to deny to them any measure of control over this vital aspect of their lives and property and to deprive...

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