permanent injunction against take back stl

8/12/2019 Permanent injunction against Take Back STL

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MISSOURI CIRCUIT COURTTWENTY-SECOND CIRCUIT(City of St. Louis)

MARY ERIN NOEL, et al., )

)Plaintiffs, )

)v. ) No. 1422-CC00249

) Div. 18BOARD OF ELECTION COMMISSIONERS, )

etc., et al., ))

Defendants. )

FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER AND JUDGMENT

Plaintiffs, citizens and taxpayers of the City of St. Louis,

bring this action to prevent submission of an initiative proposition

to their fellow citizens of the City. After hearing, the Court

entered a preliminary injunction preventing submission of the

initiative at a special election. At the trial on the merits, members

of the committee of petitioners were granted leave to intervene as

defendants. The parties submitted the case on the preliminary

injunction record, the pleadings, exhibits and testimony of the

principal draftsman of the initiative. Having considered the record,

the Court now enters its findings of fact, conclusions of law, order

and judgment. Issues on which no specific finding is made are deemed

found in accordance with the result reached. Objections not

heretofore expressly ruled on will be deemed overruled, with the Court

considering such evidence only for permissible purposes.

Findings of Fact

1. Plaintiffs herein are individuals and a limited liability

company residing in the City of St. Louis and are taxpayers thereof.


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2. Defendant Board of Election Commissioners is the duly

authorized and acting election authority within and for the City of

St. Louis.

3. Defendant City of St. Louis is a constitutional charter

city of Missouri.

4. Intervenor defendants are members of a committee of

petitioners who prepared and circulated petitions to the voters of the

City of St. Louis, proposing an amendment to the Charter of the City

of St. Louis consisting of a new article XXVII, entitled "Sustainable

Energy Policy." See Pl.Ex. 2, 3. (For convenience, the Court

hereinafter will sometimes refer to the proposition as the

"sustainable energy amendment.")

5. The committee of petitioners presented petitions reflecting

22,639 signatures of registered City voters to the Election Board, and

the Board duly certified the petitions to the Board of Aldermen.

Pl.Ex. 4. The Board of Aldermen did not act to submit the proposition

to the voters. Pl.Ex. 1. The Election Board accordingly proceeded to

call a special election for April 8, 2014, and began preparations for

holding the election. The estimated cost of a special election,

payable from public funds, is $500,000. The cost of submitting the

proposition at a general election would be less, but will necessarily

entail expenditures of public funds attributable specifically to the

sustainable energy amendment. See Pl.Ex. 8 for the manner of printing

ballot propositions in the past.

6. The ballot form adopted by the Board for submitting the

sustainable energy amendment will not contain a summary of the


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initiative proposition, but will instead present the entire text of

the proposition. Pl.Ex. 5.

7. Plaintiffs allege that the energy initiative is

procedurally and substantively invalid and seek a declaratory judgment

to that effect. Count I of the petition alleges that charter

amendments by initiative are not permitted under Mo.Const. art. VI,

32, governing the charter of the City of St. Louis. Count II alleges

that the initiative proposition is invalid on its face as exceeding

the powers of the City as a constitutional home rule city in that the

sustainable energy amendment would conflict with numerous statutes.

Count III alleges that the proposition is invalid on its face as

entailing an appropriation of public funds contrary to Mo.Const. art.

III, 51. Count IV alleges numerous procedural defects in the

initiative petition: it is addressed to the City's Board of Aldermen

and not the Election Board; it illegally demands that the Board of

Aldermen adopt the proposition instead of submitting it to the voters;

the enacting clause is defective; the summary of the proposition in

the initiative petition is false and misleading; and the initiative

petition fails to fully disclose the text of the proposition. Count V

alleges that the proposed ballot summary, or the presentation of the

proposition in full, presents the proposition in an unlawful manner.

Count VI alleges that the proposition is void on its face as denying

equal protection of the laws to the "unsustainable energy producers"

identified in the proposition. Finally, count VII seeks injunctive

relief.


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8. The initiative petition (Pl.Ex. 2) summarized the proposed

charter amendment as follows:

A proposed ordinance submitting to the registered voters of theCity of St. Louis an amendment to the City Charter enacting a new

Article XXVII setting forth the right to a sustainable energyfuture; requiring the City to create and publish annual and 5-year Sustainable Energy Plans; and, prohibiting the City fromgranting any Public Financial Incentives to any UnsustainableEnergy Producer (the full text of which appears attached to thispetition.)

9. The proposed charter amendment (Pl.Ex. 3) declares a "right

to a sustainable energy future" and prescribes the establishment of a

"sustainable energy policy." Proposition, 1. The operative section

of the proposition provides that the City "shall not grant any Public

Financial Incentives to an Unsustainable Energy Producer." Id.,

2(a). Section 2(b) directs the Mayor to create and publish an annual

and a 5-year "sustainable energy plan" that must include "concrete

opportunities" for public financial incentives to preferred energy

producers and initiatives, availability of City property (including

property of the Land Reutilization Authority and the Land Clearance

for Redevelopment Authority) to individuals and groups for

"sustainable energy initiatives," and the preferential use of locally

generated energy.

10. As used in the sustainable energy amendment, a "public

financial incentive" means any "economic or financial incentive

offered or provided by the City," including "without limitation" any

forms of tax relief or reduction, any tax increment financing, and

reduction, credit or subsidy related to any bond, loan or similar

arrangement, and the ability to form or receive any economic benefit


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from any special taxation district. Proposition, 3(b). As defined,

"public financial incentive" also expressly includes "any monetary or

non-monetary benefit related to any public fund or program."

Proposition, 3(b)(iii), emphasis added.

11. As used in the sustainable energy amendment, the term

"Unsustainable Energy Producer" means any entity or organization

engaged "primarily in the mining or extraction of . . . fossil fuels,

coal, natural gas, oil, nuclear and radioactive materials, or other

energy sources that are non-renewable," Proposition 3(c). The

definition goes further to include any entity or organization that

"transacts at least $1,000,000 of business per calendar year" with the

other defined "Unsustainable Energy Producers." Id.

12. The sustainable energy amendment authorizes citizen suits

to enforce its terms and contains a severability clause. Proposition,

4-5.

13. The evidence at trial from intervenor defendants included

the testimony of the principal draftsman of the sustainable energy

amendment, Arielle Klagsbrun, as well as numerous exhibits indicating

that the use of fossil fuels in the American economy has undesirable

consequences, and that public financial incentives designed to promote

economic activity in the City of St. Louis (and elsewhere) have not

produced much in the way of benefits to the City or the public

generally. E.g., Pl.Ex. A-D, H, I. There is also evidence in the

record that financial firms and law firms, who come within the broad

definition of "unsustainable energy producer," have benefited from


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public financial incentives in the City in the past and would likely

be denied such benefits under the sustainable energy amendment.

14. It appears from the record that the purpose of the

sustainable energy amendment is twofold: (a) to compel the City to

adopt a sustainable energy plan which entails, in part, forwarding

what are commonly described as "green energy" or "renewable energy"

projects in the City; and (b) to prevent grant of tax incentives to

the disfavored "Unsustainable Energy Producers" in an effort to damage

their competitive position in the marketplace, by indirectly

increasing their costs of doing business. Neither side presented

competent expert testimony on the economic impact of the sustainable

energy amendment if its provisions were in fact implemented.

15. Plaintiffs presented some evidence to impugn the motives of

intervenor defendants and their supporting organizations and to

suggest that they entertain a radical socialist agenda and have been

critical of the Court. Pl.Ex. 9-11. The Court regards this evidence

as immaterial.

16. Intervenor defendants' witness acknowledged that, in her

opinion, the sustainable energy amendment could apply to charitable

organizations and not-for-profit organizations if they qualify as

"unsustainable energy producers" as defined in the amendment, i.e., if

they receive $1,000,000 or more from such producers. She denied that

the amendment would operate to deny "unsustainable energy producers"

the benefits of police and fire protection from the City.

17. The City of St. Louis currently maintains a "sustainable

energy plan," developed and paid for by federal or state grants. To


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formulate a plan as required by the sustainable energy amendment would

entail expenditure of approximately $500,000 of City funds, not

counting possible "renewable energy" or "sustainable energy"

incentives. Prelim.Inj. Tr. 35-36. Of course, the amendment by its

terms compels no appropriation and mandates no particular project to

be subsidized, and it is not altogether clear to the Court why the

existing, grant-funded plan could not be modified at little additional

expense.

18. Plaintiffs presented evidence from Rodney Crim, an expert

in economic development in the metropolitan area, concerning the

potential consequences of a literal interpretation of the sustainable

energy amendment. Discounting much of Crim's testimony about perverse

consequences, the Court nevertheless finds that, if adopted by the

voters, the amendment would in fact exclude a variety of enterprises

from qualifying for benefits under the existing statutory regime of

economic incentives or, in intervenors' parlance, corporate welfare.

Conclusions of Law

1. The Court has jurisdiction of the parties and the subject

matter. 527.010 et seq.,RSMo; City of Kansas City v. Chastain,

420 S.W.3d 550 (Mo.banc 2014); J.C.W. ex rel. Webb v. Wyciskalla,275

S.W.3d 249 (Mo.banc 2009). There is no absolute requirement that the

sustainable energy amendment be submitted to the voters at an election

to be held in April of 2014; if otherwise permitted, defendant Board

can submit the amendment at another election. See State ex rel.

Blackwell v. Travers,600 S.W.2d 110 (Mo.App.E.D. 1980).


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2. According to City of Kansas City v. Chastain,420 S.W.3d at

554-55:

Missouri law authorizes courts to conduct pre-election review ofthe facial constitutionality of an initiative petition. See

Missourians to Protect the Initiative Process v. Blunt,799S.W.2d 824, 828 (Mo.banc 1990); Kansas City v. McGee,364 Mo.896, 269 S.W.2d 662, 664 (Mo. 1954)(courts may review a law to beenacted by initiative to determine its constitutionality). Theidea underlying this rule is that pre-election review of thefacial constitutionality of an initiative petition is warrantedgiven the "cost and energy expended relating to elections" and toavoid the "public confusion generated by avoiding a speedyresolution of a question ...." Blunt,799 S.W.2d at 828. Thecircuit court had the authority to engage in pre-election reviewof the facial constitutionality of the initiative petition.

3. The Court rejects intervenors' position that the scope of a

facial challenge to an initiative proposition is limited to matters of

form or procedure, e.g., dual subject matter, illegal appropriation,

and the like, and that plaintiffs lack standing to assert their equal

protection claims. In light of the unqualified language of Chastain,

the Court concludes that pre-election review of the validity of an

initiative proposition is permitted to the extent that the defect is

patent on the face of the proposition. Thus, plaintiffs, as

taxpayers, have standing to attack the sustainable energy amendment on

its face, regardless of the basis of the theory of facial invalidity.

Of course, the Court cannot and will not entertain constitutional

claims that depend on "as applied" invalidity or on claims not

apparent from the face of the initiative proposition.

4. Article V of the City Charter (of which the Court takes

judicial notice, Mo.Const. art. VI, 33) provides as follows:

Section 1 Use authorized


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The people shall have power, at their option to proposeordinances, including ordinances proposing amendments to thischarter, and to adopt the same at the polls, with the same effectas if adopted by the board of aldermen and approved by the mayor,such power being known as the initiative. It shall be exercisedas hereinafter provided, subject to the provisions of this

charter.

Section 2 Petition required.

Such an ordinance shall be proposed by petition signed byregistered voters equal in number to five percent or, in case theproposed ordinance is for the submission of an amendment to thecharter, ten percent of all the registered voters of the city atthe time of the last preceding regular mayoralty election. Eachof the papers comprising the petition shall contain the proposedordinance in full and designate by names and addresses fivepersons as the committee of the petitioners.

Section 3 Procedure employed in recall to be followed.

Each such petition and the papers comprising same shall begoverned by, and proceedings shall be had thereon in accordancewith, the provisions of section 3 and 5 of article III concerningthe recall, but construing said sections with reference to thepetition and the sufficiency thereof required by this article.

5. Article III of the Charter provides as follows:

Section 3 Same--How signatures affixed.

The signatures need not all be appended to one paper, but allpapers comprising the petition shall be uniform in character andshall each be verified by affidavit stating that each signaturethereto was made in affiant's presence by, as affiant verilybelieves, the person whose name it purports to be. Each signershall state, opposite his signature, his residence address. Anyperson shall be deemed a registered voter whose name is unerasedon the registration books.

Section 5 Same--Filing and certification.

All papers comprising the petition shall be assembled by the

petitioners and filed with the board of election commissioners asone instrument, and within ten days thereafter said board shallfind and certify as to the sufficiency of the petition, statingthe number of registered voters signing. If the petition iscertified to be insufficiently signed, supplemental papersconforming to the requirements for the originals may be filedwithin twenty days thereafter, and said board, within ten daysafter such supplements are filed, shall find and certify as to


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the sufficiency of the petition, so supplemented. If found stillinsufficiently signed, no further supplement shall be allowed,but a new petition may be filed.

6. Plaintiffs' theory that charter amendments are precluded by

Mo.Const. art. VI, 32(a) is not viable. Although that section refers

to amendments proffered by the City's "lawmaking body," nothing in

that section forbids the City from providing by its charter for

amendments by initiative or defines "lawmaking body" to exclude the

citizenry themselves. Furthermore, contrary to plaintiffs' position,

Mo.Const. art. VI, 19(a) and 20 must be viewed as supplementing

32(a), see Wunderlich v. City of St. Louis,511 S.W.2d 753 (Mo.banc

1974), and 20 clearly authorizes charter amendments by initiative.

Since 19(a), 20 and 32(a) are in pari materia, they should be

construed together and harmonized where possible. In any event, the

Court concludes that this issue was resolved in the otherwise infamous

case of Pitman v. Drabelle,183 S.W. 1055 (Mo.banc 1916), in which it

was declared, "we may dismiss from view any consideration of the

suggestion that the amended charter of the city of St. Louis is out of

harmony with the Constitution or laws of the State in so far as it

provides for the exercise by the people of that city of the power to

legislate by the initiative." 183 S.W. at 1056. (To be sure, the

Constitution of 1875 used the term "lawmaking authorities," and

Mo.Const. art. VI, 32(a) uses the term "lawmaking body," but the

Court perceives no intention by the change in language in 1945 to

overrule Pitmanin this respect. On the contrary, the express

recognition, in art. VI, 31 of the 1945 constitution, of the City's


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existing charter--a charter that contained the initiative provision

upheld in Pitman--strongly indicates otherwise.)

7. The City Charter is elliptical in regard to the form and

sufficiency of initiative petitions, and the general statutes on the

subject are applicable to a very limited degree. See 115.019,

115.700, 116.020. In regard to the form and sufficiency of the

initiative petitions, the Court must accord a very liberal view to

procedural niceties of the initiative process, particularly given the

imprecision of the governing instrument, the City Charter. See, e.g.,

Missourians to Protect the Initiative Process v. Blunt,799 S.W.2d

824, 827 (Mo.banc 1990); United Labor Committee v. Kirkpatrick,572

S.W.2d 449 (Mo.banc 1978). In particular, failure to adhere to mere

technical formalities should not deny the people the power to propose

changes to the City Charter; substantial compliance with the governing

procedural requisites is all that is required. See Committee for a

Healthy Future v. Carnahan,201 S.W.3d 503, 512 (Mo.banc 2006).

8. There is no question that the petition's language directed

to the Board of Aldermen is defective, since the Board of Aldermen has

no authority to adopt charter amendments by itself. The most it could

do is agree to submit the proposed charter amendment to the voters,

but that agreement is not a condition precedent to a vote. The Court

agrees that article V, 4 of the Charter must be construed as a mere

notification procedure to permit the Board of Aldermen to endorse the

proposed amendment, or to give the petitioners time to withdraw it,

but the petition itself should be addressed to the Election Board.

Similarly, the enacting clause of the proposed amendment is not


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bill titles and initiative ballot titles. See, e.g., Billington v.

Carnahan,380 S.W.3d 586 (Mo.App.W.D. 2012)(affirming ballot language

as fair and sufficent despite obvious distortions). More importantly,

however, the deception alleged in this case is beyond the authority of

the Court to remedy. See State ex rel. Dienoff v. Galkowski,ED 99832

(Mo.App.E.D. 2014); Cole v. Carnahan,272 S.W.3d 392 (Mo.App.W.D.

2008). Article V of the Charter prescribes only that the initiative

petition contain the text of the proposition and the names of the

committee of petititoners. The petition conforms to those

requirements. In light of Dienoff,the Court concludes that ifthere

is any justiciable pre-election claim about the sufficiency of the

summary of an initiative proposition, it must be found in an

affirmative, material misrepresentation about the subject matter of

the proposition (e.g., it tells signers that the proposition relates

to abortion but it actually provides for a transit tax) or in the

omission of the full text from the petition for review by the

prospective signer. Cf. State ex. inf. McKittrick v. Kirby,162

S.W.2d 990 (Mo.banc 1942)(charter requirements regarding clear title

of ordinances inapplicable to proposed charter amendments). The

petition's form is proof against pre-election challenge.

12. As a constitutional charter city, the City of St. Louis

enjoys all powers expressly conferred by law and all powers which the

General Assembly has authority to confer upon any city, "provided such

powers are consistent with the constitution . . . and are not limited

or denied either by the charter . . . or by statute." Mo.Const. art.

VI, 19(a). The authority of a city under 19(a) is not, however,


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without meaningful limits, and the most significant limitation is that

municipal legislation may not invade the province of general

legislation involving the public policy of the state as a whole. See

Yellow Freight Systems, Inc. v. Mayor's Comm. on Human Rts.,791

S.W.2d 382 (Mo.banc 1990); Alumax Foils, Inc. v. City of St. Louis,

959 S.W.2d 836 (Mo.App.E.D. 1997); Mager v. City of St. Louis,699

S.W.2d 68 (Mo.App.E.D. 1985).

13. The Court concludes that, on its face, the initiative

proposition is invalid as in direct conflict with a plethora of

Missouri "economic development" or tax incentive statutes. In their

post-trial brief, plaintiffs allude to a score or more of such

statutes, but the Court need advert to only two: the "TIF" statute,

99.800 et seq.,and the "special business district" statute,

72.790 et seq., RSMo. Both of these statutory schemes set out the

manner in which their benefits are to be secured. They do not mandate

that the City of St. Louis (or any other municipality) adopt such

programs and, in regard to "TIF" plans, the statutes establish an

elaborate review and recommendation procedure before any city can

approve a redevelopment plan calling for tax increment financing. On

the other hand, the statutes contain no limitations as to the classes

of persons or entities which are eligible to submit "TIF" plans or

establish special business districts. The sustainable energy

amendment unquestionably would engraft upon the statutes an exclusion

of a class of "unsustainable energy producers" from participating in

or receiving benefits from "TIF" plans or special business districts.


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Indeed, that is one of the primary purposes of the sustainable energy

amendment.

14. The sustainable energy amendment would prohibit that which

state statutes permit, namely the participation of entities defined by

the amendment as "unsustainable energy producers" in programs under

the statutes. Given that these statutes set out the public policy of

the Missouri in regard to "TIF" and special business districts, and

given that they do not exclude any class of persons or organizations

from participation, it follows that the sustainable energy amendment

prohibits what these statutes permit, and so the amendment is beyond

the charter authority of the City of St. Louis. In this connection,

the Court is guided by State ex rel. Hazelwood Yellow Ribbon Comm. v.

Klos,35 S.W.3d 457 (Mo.App.E.D. 2000), in which the Court of Appeals

held that an initiative charter amendment was not within a charter

city's power under Mo.Const. art. VI, 19(a), because the amendment

purported to forbid the exercise of the power of eminent domain in

connection with a "TIF" plan. Because the "TIF" statute expressly

authorized use of eminent domain, the Court held that the charter

amendment was in conflict with the statute and could not be submitted

to the voters.

15. The artful attempt of intervenor defendants to distinguish

Hazelwoodis ineffective. The sustainable energy amendment does more

than "shape" the City's discretion in the administration of "TIF"

plans: it forbids the City even to consider a plan that would benefit

an excluded group. Intervenors' reliance on City of Kansas City v.

Carlson,292 S.W.3d 368 (Mo.App.W.D. 2009) is misplaced. In that


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case, a Kansas City ordinance enacted a ban on smoking in bars. This

was held not to conflict with a general statute which prohibited

smoking only in restaurants. The reasoning of Carlsonseems specious,

but specious or no, the Carlsonreasoning cannot be extended to the

situation in the case at bar, in which the amendment seeks to carve

out a disfavored class from receiving benefits that the "TIF"

statutes, and many other statutes, would permit. Compare State ex

rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681 (Mo.banc

2000)(Zoning Enabling Act preempted local ordinance) with State ex

inf. Hannah ex rel. Christ v. City of St. Charles,676 S.W.2d 508

(Mo.banc 1984)(Sawyer Act preempted annexation procedures, foreclosing

annexation by charter amendment).

16. Likewise, the sustainable energy amendment seeks to exclude

"unsustainable energy producers" from forming, directing or receiving

"any economic or financial benefit from any special taxation

district." At a minimum this provision would plainly be applicable to

special business districts formed under 71.790 et seq., RSMo 2000 &

Supp. Again, nothing in the relevant statutes authorizes or

contemplates the exclusion of any class of enterprises from forming or

obtaining benefits from a special business district. Even construing

the initiative proposition so as to avoid illegality or absurd

results, the Court cannot escape the conclusion that the initiative is

in irreconcilable conflict with the special business district

statutes.

17. The Court does not accept plaintiffs' assertion that the

sustainable energy amendment amounts to an appropriation initiative


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decisions will eventually be rectified by the democratic process and

that judicial intervention is generally unwarranted no matter how

unwisely we may think a political branch has acted." Vance v.

Bradley,440 U.S. 93, 97 (1979). Relying on these principles,

intervenor defendants insist that, on its face, the sustainable energy

initiative is rationally related to the legitimate goal of reducing

usage of fossil fuels and encouraging the use of other energy sources

in the City of St. Louis, and therefore is impervious to equal

protection challenge. The Court disagrees.

19. In addition to the elementary principles adumbrated above,

it is equally well settled that the touchstone of equal protection is

that persons similarly situated shall be treated similarly, and that

business organizations are "persons" entitled to equal protection as

well as other constitutional rights. E.g., Citizens United v. Federal

Election Comm.,558 U.S. 310 (2010). Furthermore, legislation that is

designed to "fence out" selected classes from the full rights of

citizens can be found defective under equal protection principles. As

the Supreme Court put it in Romer v. Evans,517 U.S. 620, at 633-34

(1996):

It is not within our constitutional tradition to enact laws ofthis sort. Central both to the idea of the rule of law and to ourown Constitution's guarantee of equal protection is the principlethat government and each of its parts remain open on impartialterms to all who seek its assistance. "'Equal protection of the

laws is not achieved through indiscriminate imposition ofinequalities.'" . . . Respect for this principle explains whylaws singling out a certain class of citizens for disfavoredlegal status or general hardships are rare. A law declaring thatin general it shall be more difficult for one group of citizensthan for all others to seek aid from the government is itself adenial of equal protection of the laws in the most literal sense.


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"The guaranty of 'equal protection of the laws is a pledge of theprotection of equal laws.'" [Citations omitted.]

20. In this case, the classification created by the sustainable

energy amendment of "unsustainable energy producers" arguably may be

rational, if this class was being singled out for different regulatory

treatment because of its economic characteristics. Certainly lawful

regulation of business enterprises may constitutionally run the gamut

from complete prohibition to imposition of conditions so burdensome as

to make the enterprise commercially impossible. However, the

amendment at issue in this case is not really a regulation of business

activity: it is an act of exclusion of a disfavored group from

general benefits under a wide range of government programs. Moreover,

this disfavored group is not defined solely by the direct activities

of its members. The definition of the class embraces any entity "that

transacts at least $1,000,000 of business" per year with direct

producers of fossil or nuclear fuels, regardless of whether that

business involves purchase of fuels or not. Under this expansive

definition of "unsustainable energy producers," a host of lawful

businesses are barred from participating in a wide range of

governmental programs and benefits (if not basic services), even

though these businesses do not themselves engage in the production of

the disfavored fuels. Further, the hypothetical effect of such

deprivation is so attenuated as to be virtually non-existent. Nothing

in the record shows that there is any rational basis to believe that

excluding law firms and financial firms that do business with coal or

oil companies from "TIF" benefits, special business district


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formation, urban redevelopment corporation formation, industrial

development, "brownfield" credits, etc., will have any measurable

economic impact on the competitive position of coal or oil companies.

The definition of the class of "unsustainable energy producers" lends

itself ineluctably to an inference that the amendment is actuated

primarily by antipathy toward any fossil or nuclear fuel producer and

anyone having a substantial association with such producers.

21. Under equal protection analysis, to find a rational

relationship between a classification and a legitimate governmental

objective, there must be some basis for a reasonable person

objectively to believe that the legislative means are connected to the

legislative ends. Here, the Court can conceive of no rational

justification for the wholesale exclusion of lawful enterprises from

the benefits of a wide variety of general laws, simply because they

happen to do business with coal or oil companies--companies that are

not shown even to be located within the City of St. Louis and so not

likely to be prevented from obtaining desired legal or financial

services from other enterprises wholly unaffected by the proscription

contained in the sustainable energy amendment.

22. The sustainable energy amendment strongly resembles the

statute invalidated in Pettit v. Field,341 S.W.2d 106 (Mo. 1960), in

which retail merchants were arbitrarily excluded from eligibility for

licensing to sell money orders and the like. The exclusion was

regarded as irrational, since it was not based on any legitimate

regulatory need or policy. Here, the exclusion of a class of entities

who do not themselves engage in disfavored energy production from the


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benefits of many state economic development or incentive statutes is

similarly arbitrary.

23. Considered as a whole and in light of its plain language,

the manifest purpose of the sustainable energy amendment is not so

much to advance the use of approved fuels, as to punish enterprises

which deal in the disfavored fuels and to punish the enterprises which

deal with the disfavored energy producers for their presumed role in

furthering the business of the disfavored producers. On its face, the

amendment lacks a rational relationship to a legitimate governmental

end and is unconstitutional. To be sure, intervenors have every right

to disapprove of and seek regulation or even the prohibition of the

production or use of fossil or nuclear fuels, but they must do so in

conformity to the constitution, which, like it or not, protects fossil

fuel producers as well as anarchists.

24. The Court is of course cognizant of the severability clause

set out in the imitative proposition. The presence of that clause,

however, does not shield the proposition from its facial invalidity.

The Court is not at liberty to rewrite the ballot proposition in such

manner as to salvage the planning provisions, or to elide the punitive

and unconstitutional provisions, and put a redacted proposition before

the voters. The Court cannot assume that the persons who signed the

petition would have done so absent its unconstitutional features.

More importantly, the severability clause is insufficient to save the

measure. The prohibition of "public financial incentives" is at the

heart of the proposition. To strike out Section 2 of the proposition


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is to leave an empty shell. See Pettit v. Field, supra; cf. Hazelwood

Yellow Ribbon Committee,supra, 35 S.W.3d at 471.

25. The Court has addressed all claims pleaded in the petition

so as to ensure that the record is complete and, in the event the

Court's conclusions as to one claim are erroneous, there will be no

difficulty in securing appellate review of other claims. See Smith v.

City of St. Louis,395 S.W.3d 20 (Mo.banc 2013). However, the Court

is aware of the precept that constitutional claims should be avoided

where feasible, and that a declaratory judgment is not a vehicle for

advisory opinions. Accordingly, the Court will dismiss the equal

protection claim as moot in light of the judgment resting on Mo.Const.

art. VI, 19(a). The Court's judgment will declare the rights and

duties of the parties on all of the other claims because, as was the

case in Dienoff, supra, there seems a strong likelihood that

intervenors will revamp their initiative, and so the claims regarding

the authority of the citizens of the City of St. Louis to initiate

charter amendments and the formal requirements of such initiatives are

not moot. Similarly, the scope of defendant Board's discretion in

settling on the form of submitting such initiatives is the subject of

a live, justiciable controversy on this record. See Missouri Alliance

for Retired Americans v. Dept. of Labor, etc.,277 S.W.3d 670 (Mo.banc

2009); State ex rel. Dienoff v. Galkowski,supra.

ORDER AND JUDGMENT

In light of the foregoing, it is

ORDERED, ADJUDGED AND DECREED that plaintiffs have judgment

against defendants on counts II and VII of the petition herein and


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that it is declared that the initiative proposition proposing a new

Article XXVII to the Charter of the City of St. Louis, which

proposition is in the record as Plaintiffs' Exhibits 2 and 3, is

illegal and void on its face as exceeding the authority of the City of

St. Louis as provided by Mo.Const. art. VI, 19(a); and it is

FURTHER ORDERED, ADJUDGED AND DECREED that defendant Board of

Election Commissioners, its members, officers, agents, employees,

attorneys and all persons acting in concert with them with notice of

this Order be and they are hereby permanently restrained and enjoined

from expending public funds or otherwise taking any steps to place on

the ballot at any special or general election the proposition

purporting to amend the Charter of the City of St. Louis by adding new

article XXVII, as set forth in Plaintiffs' Exhibits 2 and 3; and it is

FURTHER ORDERED, ADJUDGED AND DECREED that defendants have

judgment against plaintiffs on counts I, III, IV and V of the petition

herein and it is declared that the citizens of the City of St. Louis

have the right to propose amendments to the Charter of the City of St.

Louis by initiative as provided in said Charter, that the form of the

initiative proposition in evidence, Plaintiffs' Exhibit 2, is in

substantial conformity to law; and that the defendant Board of

Election Commissioners, in its discretion, may submit to the voters

initiative propositions under the Charter of the City of St. Louis by

ballot setting forth either a fair and adequate summary of such

propositions or the full text thereof; and it is

FURTHER ORDERED that count VI of the petition is dismissed

without prejudice as moot; each party herein to bear own costs.


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SO ORDERED:

___________________________Robert H. Dierker

Circuit Judge

Dated: ______________, 20__cc: Counsel/parties pro se/Amicus Curiae

permanent injunction against take back stl

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