Mike MacMann, et al v. Mike Matthes, et al

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Jane Kelly AUTHORING JUDGE:Roger L. Wollman (PUBLISHED) [4477931] [15-3400]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3400
___________________________
Mike MacMann; Betty Wilson
lllllllllllllllllllll Plaintiffs - Appellants
v.
Mike Matthes; City of Columbia, Missouri
lllllllllllllllllllll Defendants - Appellees
Opus Development Company, L.L.C.; HSRE ODC II MIZZOU, LLC
lllllllllllllllllllllIntervenors
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: September 21, 2016
Filed: December 9, 2016
____________
Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Mike MacMann and Betty Wilson (collectively, the residents) sued the City of
Columbia, Missouri, and City Manager Mike Matthes (collectively, the City),

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alleging that the City violated their rights under the Columbia City Charter, the
Missouri Constitution, and the First and Fourteenth Amendments to the U.S.
Constitution by interfering with their participation in a municipal referendum process
to repeal two ordinances passed by the City Council in connection with a studenthousing development project proposed by Opus Development Company. The district
court1 rejected the residents’ arguments and granted summary judgment to the City.2
The residents appeal, and we affirm.
On March 19, 2014, the City Council approved an ordinance authorizing the
City Manager to enter into a development agreement with Opus to construct a
student-housing project in downtown Columbia (Ordinance A). The agreement noted
that existing public-utility infrastructure was inadequate to serve the Opus project as
proposed; that Opus would contribute $450,000 for infrastructure improvements in
the area; and that the City would approve construction of the project, assuming “all
requisite permits have been issued by the City.” Within a week after the development
agreement was signed, opponents of the project, including the residents, initiated the
referendum process under the City Charter and began to obtain signatures on a
referendum petition to repeal Ordinance A (Referendum A). On March 31, while the
Referendum A process was ongoing, the City Manager signed the Opus development
agreement authorized by Ordinance A. As required under the City Charter,

1

The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
2

The district court granted Opus Development Company, LLC, the project
developer, and HSRE ODC II MIZZOU, LLC, the owner of the subject real property,
permission to intervene for the limited purpose of opposing the residents’ request to
extend a temporary restraining order (TRO) entered by a state-court judge before the
City removed the case to federal court. The district court treated the residents’
request to extend the TRO as a motion for a preliminary injunction, denied the
motion, and thereby dissolved the TRO.
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Referendum A was submitted to the City Clerk on April 8 for certification that the
required number of valid signatures had been obtained in support of the referendum.
On May 19, after Referendum A had been filed with the City Clerk, but before
it had been certified, the City Council approved Ordinance B, which the district court
found “was in all material ways the same as Ordinance A, the subject of the ongoing
referendum process,” except that Ordinance B contained a contingency, which stated
that if no referendum petition was filed to repeal Ordinance B, then Ordinance A
would be automatically repealed. When Ordinance B was approved by the City
Council, Ordinance A was still in effect. Opponents of the Opus project, including
the residents, immediately began gathering signatures on a second referendum
petition to repeal Ordinance B (Referendum B).
The City Clerk certified the signatures on Referendum A on May 29. Pursuant
to the City Charter, “further action []under” Ordinance A was “suspended” after
certification of Referendum A. The Charter required the City Council to reconsider
Ordinance A within thirty days and determine whether it should be repealed. Only
if the City Council declined to repeal Ordinance A after reconsideration was the
Council required under the Charter to submit the matter to City voters for a
determination whether to repeal Ordinance A. On June 16, within the designated
thirty-day period, the City Council reconsidered and repealed Ordinance A. At that
time, Ordinance B was in effect, although Referendum B had been submitted to the
City Clerk on June 9 for certification.
On July 7, while certification of the Referendum B signatures was still pending
with the City Clerk, the City Council adopted a resolution authorizing temporary
sidewalk and parking-lane closures around the Opus development site.3 The City also

3

Unlike ordinances, neither resolutions adopted by the City Council nor permits
issued by the City administrative departments are subject to the citizen-referendum
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began to issue permits for the Opus project under its administrative authority,
including land-disturbance, demolition, footings-and-foundation, and building
permits. According to the City, the various municipal departments issued these
permits because updated building specifics submitted by Opus and infrastructureimprovement plans devised by the City established that the affected infrastructure
could now accommodate the Opus project.
In the meantime, the City Clerk certified the signatures on Referendum B on
July 31. As it did with Ordinance A, the City Council reconsidered Ordinance B and
on August 18, repealed the ordinance without submitting the matter to City voters.
The City never signed the development agreement with Opus that had been
authorized by Ordinance B.
On August 12, the residents filed suit in Missouri state court, alleging that the
City had engaged in a “plan and scheme to deny [the residents] their rights under the
City Charter and [had] thus violated their rights to free speech, to petition the
government, all as protected by the First and Fourteenth Amendments.” They
contended that once they initiated the referendum process under the City Charter to
challenge Ordinance A, the City could not constitutionally interfere with that ongoing
process, either by introducing Ordinance B—an ordinance that was materially
identical to the ordinance they were seeking to repeal—or by authorizing permits for
the Opus development project—the subject of the ongoing referendum process. The
residents also argued that Ordinance B was an unconstitutional effort by the City
Council to coerce the residents into giving up their right to participate in the
referendum process by conditioning the repeal of Ordinance A on the residents’
capitulation to the adoption of Ordinance B. The City removed the case to federal

provisions set forth in the City Charter.
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court on August 21, asserting federal-question jurisdiction under 28 U.S.C. § 1331,
and the residents did not seek to remand the case to state court.4
The district court eventually granted the City’s motion for summary judgment.
It concluded that the residents’ rights to participate in the referendum process were
not unlimited but were defined and circumscribed by the City Charter, that the City
complied with all the provisions set forth in the City Charter, that the residents
received all the process they were due under Missouri law and the City Charter, that
the residents had not identified a First Amendment violation, and that the challenged
contingency set forth in Ordinance B was not an unconstitutional condition because
it did not extract a quid pro quo for citizen participation in the referendum process.
The residents challenge each of these conclusions on appeal.5
“We review the grant of summary judgment de novo, viewing the evidence in
the light most favorable to the nonmoving party and drawing all justifiable
inferences” in that party’s favor. Putman v. Unity Health Sys., 348 F.3d 732, 733 (8th
Cir. 2003). Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled

4

In September 2014, after this case was removed, the residents filed a separate
action in state court, seeking a declaration that the City’s issuance of permits for the
Opus development project was arbitrary and capricious because the referendum
process was ongoing and because the relevant utility infrastructure was insufficient.
After the state-court judge dismissed some of the residents’ claims, they voluntarily
dismissed their remaining claims.
5

The City argues that the residents lack standing because they have not alleged
a particularized injury in fact or that any such injury could be redressed by the court.
We disagree, because the residents have twice initiated and participated in the
municipal referendum process and have asserted claims for relief that could be
redressed by this court.
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to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)).
The residents first argue that the City’s interference with their right to
participate in the referendum process violated both the City Charter itself and the
Missouri Constitution. They argue that the municipal referendum rights set forth in
the Charter must be considered in light of the rights conferred upon Missouri
residents under the state constitution. We agree that the City Charter must be
consistent with the Missouri Constitution and state law, State ex rel. Petti v.
Goodwin-Raftery, 190 S.W.3d 501, 505 (Mo. Ct. App. 2006), but the residents do not
argue that the Charter itself is inconsistent with the Missouri Constitution or state
law. Rather, they argue that under the Missouri Constitution, their Charter-granted
referendum rights are entitled to “expansive treatment” and are “not limited,” and that
the district court improperly circumscribed the scope of those rights. We disagree.
It is true that the Missouri Constitution confers upon Missouri citizens the right
to challenge by referendum laws enacted by the state legislature. See Mo. Const. art.
III § 49 (stating that “[t]he people reserve power to propose and enact . . . laws and
amendments to the constitution by the initiative, independent of the general
assembly”). But the Missouri Constitution also provides that, for a city with a charter
form of government, the city charter confers the right, if any, to challenge by
referendum laws enacted by a city council. Id. art. VI § 19(a) (noting that a city with
a charter form of government “shall have all powers” that the Missouri general
assembly “has authority to confer . . . , provided such powers are consistent with the
constitution of this state and are not limited or denied either by the charter . . . or by
statute”). Municipal charters are adopted by a vote of the citizens of a municipality,
id., and thus, “[t]he authority granted to municipalities by the Missouri Constitution
to adopt and amend a charter reflects a city’s ‘broad authority to tailor a form of
government that its citizens believe will best serve their interest[s],’” Petti, 190
S.W.3d at 505 (quoting City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo.
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1996)). The Missouri courts have recognized that when a city is governed by a
charter, the charter defines and limits city residents’ rights to challenge by referendum
municipal ordinances adopted by the city. See State ex rel. Chastain v. City of
Kansas City, Mo., 289 S.W.3d 759, 764 (Mo. Ct. App. 2009) (“Municipal charters are
a charter city’s organic law, its constitution.”); see also Petti, 190 S.W.3d at 505
(noting that although the Missouri Constitution “sets forth the power reserved to the
people of Missouri to . . . approve or reject by referendum acts of the general
assembly, the powers reserved to the people of [the city of] Florissant with respect to
use of the initiative and referendum processes are defined and limited by the city
charter”); Murray v. City of St. Louis, 947 S.W.2d 74, 80 (Mo. Ct. App. 1997)
(“[T]he power of referendum reserved to the people of the City with respect to
ordinances is that which is contained in the City Charter. It is not subject to or
restricted by the state constitutional power of referendum which applies to state
statutes.”).
In State ex rel. Powers v. Donohue, the county residents argued that the
Missouri Constitution created an initiative right to submit county zoning ordinances
to a vote of the people and that the denial of such right would “deprive them of any
political-action remedy against outright confiscation.” 368 S.W.2d 432, 437 (Mo.
1963). The Missouri Supreme Court rejected the argument, noting first that the
Missouri Constitution conferred upon state residents the power “to propose and enact
or reject laws and amendments to the constitution by initiative and to approve or
reject by referendum acts of the general assembly.” Id. at 434. The Court then
distinguished these rights from the initiative rights granted to the county residents to
challenge county ordinances, concluding that “[t]he powers reserved to the people of
[the county] with respect to use of the initiative and referendum are defined and
limited by [the county] charter.” Id.; see also State ex rel. Harry L. Hussman
Refrigerator & Supply Co. v. City of St. Louis, 5 S.W.2d 1080, 1087 (Mo. 1928)
(holding that the Missouri Constitution reserves the power of referendum only to acts
of the state legislative assembly and not to acts of a municipality). Because the
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county charter did not permit residents to propose by initiative petition an amendment
to a zoning ordinance, the court rejected the argument. Id. at 438-39. This reasoning
was followed more recently by the Missouri Court of Appeals in Petti, which
involved the city council’s approval of a zoning ordinance to allow a shopping-center
development project, followed by the citizens’ initiation of a referendum process to
have the ordinance repealed. 190 S.W.3d at 504-05. The city clerk rejected the
referendum petition because the city charter excluded zoning ordinances from the
referendum process. Citing Powers, the court noted that the rights reserved to city
residents to challenge municipal ordinances by initiative and referendum processes
are not granted by the Missouri Constitution, but by the city charter, which excluded
zoning ordinances from the referendum process. Because the exclusion was not
unlawful, the city clerk could not be compelled to accept and process the referendum.
Id. at 505-06.
As they did before the district court, the residents suggest that Powers and Petti
are inapposite because they involved zoning ordinances. They point instead to the
Missouri Supreme Court’s decision in Earth Island Institute v. Union Electric Co.,
456 S.W.3d 27 (Mo. 2015), in which the court considered whether the Missouri state
legislature could enact a statute effectively preempting a statute proposed by an
initiative petition that had been approved for, but not yet submitted to, a vote of the
people. Id. at 29-30. The court held that if the legislature’s statute were “permitted
to preemptively modify the initiative . . . , it would allow the legislature to undercut
or undo a law initiated by the people before it could ever be voted on,” effectively
negating in advance the will of the people. Id. at 34; see also State ex rel. Drain v.
Becker, 240 S.W. 229, 232 (Mo. 1922) (noting that once a statute is adopted by
initiative or referendum, the legislature is free to amend or repeal it as it would any
other statute, but it may not preempt the effect of a later-adopted referendum or
initiative while it is still pending before the voters by enacting legislation inconsistent
with the measure during that interim period).

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Earth Island is of no aid to the residents, however, because it specifically
addresses referendum rights granted to Missouri citizens by the Missouri Constitution
with respect to laws enacted by the state legislature, and does not analyze referendum
rights granted to city residents by a city charter with respect to municipal ordinances
enacted by a city council. Although Powers and Petti involved zoning ordinances,
the underlying reasoning of those cases, along with Goff, Chastain, and Murray is
persuasive since each of those cases involved action under a city or county charter.
We thus conclude that the district court properly analyzed the residents’ referendum
rights as they are defined under the City Charter. See Chastain, 289 S.W.3d at 764-65
(“While . . . the Missouri Constitution sets forth the power reserved to the people of
Missouri to propose and enact state laws by initiative, the powers reserved to a
municipality with respect to enacting municipal ordinances by initiative are defined
and limited by the charter.”); see also Murray, 947 S.W.2d at 78 (“Voters of a
municipality have no inherent right to referendum on municipal legislation; they have
only such right to referendum as conferred by statute or charter.”).
We turn then to the referendum rights granted to the residents under the City
Charter and whether the City violated those rights. The residents argue that once the
referendum process had been initiated in response to Ordinance A, the City Council
was prohibited by the City Charter from taking any further action with respect to the
subject matter of that ordinance, i.e., the Opus development project. The City Charter
grants voters the “power to approve or reject at the polls any ordinance passed by the
council, . . . such power being known as the referendum.” It further states:
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
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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 . . . .
These sections establish and restrict the residents’ referendum rights—as well as the
alternatives available to the City Council in responding to a certified referendum
petition. The Charter requires suspension of “further action []under” an ordinance
subject to a referendum petition only after the referendum petition has been certified
by the City Clerk. When the City Council adopted Ordinance B, Referendum A had
not yet been certified, and the City Charter did not require that further action under
Ordinance A be suspended until Referendum A had been certified. Thus, to the
extent that Ordinance B could be considered “further action []under” Ordinance A,
the City Council did not violate the City Charter or interfere with the residents’
referendum rights thereunder by adopting Ordinance B. Once Referendum A was
certified, the City Council was authorized to, and did in fact, repeal Ordinance A
rather than submitting it to a vote of the people. And once Referendum B was
certified, the City Council also reconsidered and repealed Ordinance B. In other
words, the residents exercised the referendum rights they were granted under the City
Charter, and they achieved the results they sought by initiating the process:
Ordinance A and Ordinance B were both repealed. The City did not violate the
residents’ rights by enacting Ordinance B while Referendum A was pending.
The residents also argue that the City interfered with their referendum rights
by issuing construction-related permits for the Opus project while the referendum
process was ongoing. This argument fails, however, because the City Charter does
not grant the residents any right to challenge the issuance of permits by City
administrative departments. Indeed, as noted by the district court, “[t]here is nothing
in the City Charter that permits a referendum to repeal a building permit granted by
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the City.” The City Charter grants voters the power to approve or reject by
referendum “any ordinance passed by the council,” and permits, including the
construction-related permits that the residents seek to challenge here, are not issued
by ordinance. Moreover, although the City Charter dictates that “further action
[]under” a referred ordinance must be suspended once a referendum petition is
certified, the issuance of permits for the Opus project was not “further action []under”
either Ordinance A or Ordinance B. Instead, the issuance of permits was a
“ministerial act” that the City was obligated to perform once Opus submitted valid
permit applications. A city official “may not legally refuse to perform” a ministerial
act that the “law directs the official to perform upon a given set of facts . . . if the
requirements of the governing city ordinances are met.” State ex rel. Kessler v. Shay,
820 S.W.2d 311, 314 (Mo. Ct. App. 1991). There is nothing in the record indicating
that the City issued permits for the Opus project for any reason other than as part of
its ministerial duties once Opus submitted valid permit applications.6 The issuance
of permits for the Opus project did not violate the residents’ Charter-granted
referendum rights, and they have identified no independent right to challenge the
issuance of those permits. Accordingly, the district court did not err in granting
summary judgment to the City on the residents’ claims involving the issuance of the
Opus project permits.
The residents also contend that the City’s interference with the referendum
process violated their rights under the First and Fourteenth Amendments to the U.S.
Constitution. In Dobrovolny v. Moore, 126 F.3d 1111, 1112-13 (8th Cir. 1997), we
rejected similar First and Fourteenth Amendment challenges to the initiative process
authorized by the Nebraska Constitution, under which the requisite number of
6

As recognized by the district court, because residents of Columbia cannot
challenge by referendum the ministerial actions taken by the City or its various
administrative departments, including the issuance of construction-related permits,
the adequacy of the City’s downtown infrastructure to support the Opus project is
irrelevant to the residents’ claims.
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signatures needed to place an initiative measure on the ballot could not be calculated
with certainty until the date on which the initiative petition was submitted to the
secretary of state for certification. With respect to the First Amendment claim, we
held that the reasoning in Meyer v. Grant, 486 U.S. 414, 420-22 (1988), in which the
Court invalidated on First Amendment grounds a Colorado statute criminalizing the
payment of initiative-petition circulators, did not control, because Nebraska’s
initiative process, unlike the Colorado process at issue in Meyer, did not interfere
with the message communicated by proponents in the initiative petition, did not
restrict proponents’ ability to circulate the petition, did not affect proponents’ ability
to communicate with other voters, and did not regulate the content of proponents’
speech. Dobrovolny, 126 F.3d at 1112-13. We determined that in the absence of
some showing that the challenged initiative process substantially restricted political
discourse, the Supreme Court’s holding in Meyer did not control. Id.
In Missouri Roundtable for Life v. Carnahan, we relied on Dobrovolny to
conclude that a Missouri law requiring state officials to prepare summaries of
proposed ballot initiatives did not violate a political organization’s First Amendment
rights, because the law did not limit the number of circulators permitted to solicit
signatures on the initiative petition, nor did it restrict the circulators’ or the
organization’s speech, regulate how circulators gathered signatures on the initiative
petition, or prevent the organization from preparing its own ballot-initiative summary.
676 F.3d 665, 675-77 (8th Cir. 2012); see also Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1101 (10th Cir. 2006) (rejecting a First Amendment
challenge by animal-advocacy groups to a Utah constitutional provision requiring a
supermajority for wildlife-related initiatives and noting that “[t]he First Amendment
ensures that all points of view may be heard; it does not ensure that all points of view
are equally likely to prevail”); Biddulph v. Mortham, 89 F.3d 1491, 1500 (11th Cir.
1996) (“Most restrictions a state might impose on its initiative process would not
implicate First Amendment concerns.”).

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The residents have not shown any restriction on their ability to participate in
the referendum process or otherwise engage in political speech, nor have they shown
any burden on their ability to publicize their views. Neither the referendum process
itself nor the City’s conduct in responding to the referendum process interfered in any
way with the message the residents sought to communicate, restricted their ability to
circulate either referendum petition, regulated the content of their speech, or infringed
on their ability to communicate with other voters or the manner by which they could
so communicate. We thus affirm the district court’s conclusion that the residents
have not established a violation of their First Amendment rights.
We also reject the residents’ claim that the City violated their rights under the
Fourteenth Amendment by depriving them of protected liberty and property interests
without due process of law. See Mo. Roundtable, 676 F.3d at 677. They assert that
they had “legitimate, protectable property and liberty interests in the referendum
petitions that they delivered to the City of Columbia” and that the City infringed upon
those rights. The existence of a “protected . . . interest is a condition precedent to the
government’s obligation to provide due process of law, and where no such interest
exists, there can be no due process violation.” Dobrovolny, 126 F.3d at 1113. In
Dobrovolny, the plaintiffs raised similar due-process arguments, contending that they
had a property interest in the initiative process in light of their investment of time,
money, and effort in that process and that they had a liberty interest in the initiative
process that encompassed the right to know in advance the specific number of
signatures needed for certification of an initiative petition. Id. We rejected these
arguments, concluding that “[c]learly, the right to a state initiative process is not
guaranteed by the U.S. constitution but is instead created by state law,” as were the
procedures surrounding the initiative process. Id. (noting that “[t]he state retains the
authority to interpret [the] scope and availability of any state-conferred right or
interest” and any “interest created by state law is by definition circumscribed by the
law creating it” (citations omitted)). We reasoned that if any right to the initiative
process itself or to a particular procedure thereunder existed, it was “dependent upon
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a finding that state law . . . created . . . an interest substantial enough to rise to the
level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Id.
(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). Just as the appellants
in Dobrovolny had no constitutionally protected right to place issues before the
Nebraska voters, the residents here have no constitutionally protected right in the
referendum process. Any opportunity to participate in the municipal referendum
process is subject to the procedures set forth in the City Charter, “the [C]ity’s organic
law, its constitution.” Chastain, 289 S.W.3d at 764.
Even assuming that those interests were guaranteed by the U.S. Constitution,
the residents received all the process they were due. The City complied with the
provisions set forth in the Charter, including the requirement that the Council
reconsider the referred ordinances. The residents were able to successfully pursue the
referendum process to achieve their goals to repeal both Ordinance A and Ordinance
B. The district court thus did not err in granting summary judgment to the City on
this issue.
Finally, the residents argue that Ordinance B included an unconstitutional
condition, i.e., a provision that conditioned a benefit—the repeal of Ordinance
A—upon the abandonment of constitutionally protected conduct—the initiation of
a referendum petition to repeal Ordinance B—in violation of the First Amendment.
Section 3 of Ordinance B provided that “[i]n the event a referendum petition is not
filed” under the City Charter “requesting a repeal of this ordinance . . . , [Ordinance
A] shall be repealed in its entirety.” As previously discussed, there is no
constitutional right at stake in the referendum process, and thus conditioning the
repeal of Ordinance A on abstaining from the referendum process cannot be
unconstitutional.

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The City complied with all relevant provisions set forth in the City Charter.
The residents fully engaged in the referendum process to repeal Ordinances A and B,
both of which were, in fact, repealed by the City Council. The residents’ participation
in the referendum process was thus successful and was not inhibited in any way by
the City. The judgment is affirmed.
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