Wilson et al v. Matthes et al
Filing
107
ORDER entered by Judge Nanette Laughrey. Defendants Matthes and City of Columbia's motion for summary judgment [Doc. 42.] is granted. Plaintiffs Wilson and MacMann's motion for reconsideration of order denying leave to file [Doc. 98] is denied as moot. Signed on 9/21/15 by District Judge Nanette K. Laughrey. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
BETTY WILSON, et al.,
Plaintiffs,
v.
CITY OF COLUMBIA, et al.,
Defendants.
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No. 2:14-cv-04220-NKL
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eventually repealed by the Council.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
1
The relevant facts are viewed in the light most favorable to the Plaintiffs. Both
parties have included many facts that are not relevant, such as what the Plaintiffs thought the
ordinance covered, or actions taken by the Plaintiffs’ attorney that relate to the second ordinance.
These facts and other facts not relevant to the issues before the Court are not included.
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.
2
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
3
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….
4
***
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
2
Initiative petitions to adopt an ordinance are not at issue here, and therefore are
not discussed.
5
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 them of any politicalaction remedy against outright confiscation and the most grievous wrongs.” Id. at 437. The
Missouri Supreme Court held the charter contained a comprehensive procedure for county
zoning, and the initiative process was not available as a method of amending the county zoning
ordinance.
Thus, the Court confines its analysis to the rights actually granted by state law and the
Columbia City Charter.
A.
Violations of the Columbia City Charter and Missouri Constitution.
The Plaintiffs claim the Defendants violated the Columbia City Charter and the Missouri
Constitution by interfering with their referendum rights. Specifically, the Plaintiffs object to the
City Council passing Ordinance B while Referendum Petition A was being circulated. They also
object to the City issuing permits to Opus prior to the conclusion of the referendum process.
The Court finds as a matter of law that the Defendants, by these acts, did not violate either the
City Charter or the Missouri Constitution.
The City Charter, Section 133, says that once a referendum to repeal a City ordinance is
certified, the ordinance that is the subject of the referendum “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 for Ordinance B, it was adopted on May 19, 2014, but certification of Referendum A
did not occur until May 29, 2014. The City Charter did not require the City to suspend activity
under Ordinance A until the Referendum A petition was certified. Therefore, the City Council
did not violate the City Charter by adopting Ordinance B.
As for the issuance of permits during the referendum process, the Plaintiffs have not
6
identified the date on which each permit was issued. Therefore, they have failed to show that the
permits were issued after certification of a referendum petition and before repeal of either
Ordinance A or Ordinance B. However, even if permits were issued during a relevant time
period, the Defendants did not violate Section 133 of the City Charter by issuing them.
Section 133 only prevents the City from “taking further action under the ordinance” that the
voters are seeking to repeal. It does not prohibit all activity related to the subject matter of the
ordinance. As explained below, the permits were not issued “under” either Ordinance A or B.
Ordinance A authorized an agreement between Opus and the City. That agreement
provides that Opus will contribute $450,000 for infrastructure improvements and the City
“agrees to permit construction of the Project pursuant to … this Agreement and Applicable
Law.” [Doc. 51-1. Exhibit E.] An express condition precedent to the obligations of the parties
under the agreement was that “all requisite permits have been issued by the City.”
[Id.]
Applicable Law is defined as “those rules, regulations, official policies, standards and
specifications ordinances and resolutions which are controlled by the City[.]”
[Id.]
The
applicable law would include the permitting process. Thus the agreement between Opus and the
City contemplated the permitting process as a separate and necessary step, but that process was
not “further action under the ordinance.” Prior to the ordinance, permits were required; while
the ordinance was in effect, permits were required; and after the ordinance was repealed, permits
were required. The purpose of the agreement was to get Opus to contribute to infrastructure
improvements, not to give Opus the necessary permits simply by paying $450,000. When
Ordinance A was adopted, inadequate infrastructure was an impediment to the Opus project
moving forward, and the agreement between Opus and the City only addressed that impediment.
Thus, when the City issued permits during the referendum process, it did not violate the City
Charter.
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Ordinance B authorized an agreement that is in all material ways the same as the
agreement authorized by Ordinance A. Therefore, the same analysis is applicable to permits
issued after Ordinance B was certified and before it was repealed.
In their supplemental suggestions in opposition, the Plaintiffs point to Earth Island Inst.
v. Union Elec. Co., 456 S.W.3d 27 (Mo. 2015) (en banc), to argue that the Missouri Constitution
was violated by the enactment of Ordinance B. [Doc. 99, pp. 21-22.] Earth Island involved a
ballot initiative to enact a statute requiring electric utilities to generate more electricity with
renewable energy. The ballot initiative was subsequently certified for placement on the 2008
election ballot. Before it could be voted on by the general public, the General Assembly passed
Senate Bill 1181 to exempt electric utilities that met a certain renewable energy target. That
target was lower than the threshold set by the initiative petition. Subsequently, the initiative
petition statute was approved by the Missouri voters. When an electric utility sought exemption
from the Public Service Commission pursuant to SB 1181, the proponents of the initiative
petition claimed that SB 1181 was invalid. They argued that the legislature lacked authority to
enact legislation amending the ballot initiative after it had been circulated and certified for
placement on the ballot, but before it had been voted on by the general public.
The Missouri Supreme Court found that if SB 1181 was permitted to modify the
initiative, “it would mean that, even though the initiative process had been properly followed, by
the time that the voters enacted Proposition C, some of its provisions would never become law
due to a statute passed by the legislature months earlier.” Id. at 34. The Missouri Supreme
Court held that “while the legislature may amend or repeal a statute adopted by initiative or
referendum after it has been adopted, it may not validly do so once the measure is approved for
circulation and prior to its passage.” Id. at 35. But it also said “that these principles do not
preclude the legislature from enacting a law in an area that already is the subject of an initiative
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or referendum. To hold otherwise would allow the mere repetitive filing of an initiative petition
to forestall legislation in that subject area from ever becoming law, even if the people repeatedly
rejected the initiative. This would unduly and unnecessarily interfere with the ability of the
legislature to carry out its intended duties.” Id. at 30.
The Missouri Supreme Court also discussed with approval a case it had decided several
decades earlier, State ex rel. Drain v. Becker, Sec. of State, 240 S.W. 229 (Mo. 1922) (en banc),
in which it had “rejected a similar attempt to negate in advance the effect of a referendum
ordered by the people.” 456 S.W.3d at 35 (emphasis in original). Drain involved an act passed
by the legislature to reorganize certain judicial circuits. The act was suspended by the filing of
referendum petitions with the Secretary of State. But before petitions were voted upon, the
legislature passed a new act during an extra session, the effect of which was to repeal a portion
of the referred act. The Missouri Supreme Court concluded the new act, passed during the extra
session, was void and of no effect. With respect to breadth of application of the referendum, the
court held “[i]t is not reasonable to conclude, in the absence of words of limitation, that the
power … reserved was intended to be other than complete.” Id. at 231.
In contrast, the referendum provisions contained in the Columbia City Charter are
expressly limited. The City Council, prior to certification, is not prohibited from taking “further
action under the ordinance,” and the City Council is authorized to repeal the referred ordinance
after the certification but before a vote of the people. Perhaps if Ordinance B had been passed
after certification and the City Council had not repealed it, Drain and Earth Island would make
Ordinance B void even without a referendum to repeal it. Under those circumstances, a repeal
vote on Ordinance A could have no practical effect because Ordinance B, which was materially
the same, would still be in effect and the citizens would have to keep filing repeal referendums to
stop the enforcement of an ordinance that the citizens had a right to repeal. It would be the
9
mirror image of Earth Island. But those are not the facts before the Court. Ordinance B was
adopted before Referendum A was certified.
The Defendants are entitled to summary judgment on Plaintiffs’ claims under the
Missouri Constitution and Columbia City Charter. 3
B.
First Amendment and Due Process
The Plaintiffs’ claims under the First and Fourteenth Amendments also fail. There can be
no Due Process violation if the Plaintiffs received the process they were due under Missouri law
and the City Charter. And the Plaintiffs have not identified a First Amendment violation.
In Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), the Eighth Circuit affirmed
the district court’s rejection of freedom of speech and procedural due process challenges to
Nebraska’s initiative petition procedures. Nebraska’s constitution provided that the number of
petition signatures needed to place an initiative petition on the ballot is ten percent of the number
of the state’s registered voters on the day the initiative petition is submitted to the secretary of
state. As a result, initiative petition proponents could not know the exact number of signatures
needed to place their petition on the ballot until they submitted the petition for review.
The Dobrovolny plaintiffs relied primarily on Meyer v. Grant, 486 U.S. 414 (1988), in
support of their argument that the Nebraska procedure violated their right of free speech. In
Meyer, the Supreme Court had held that a Colorado statute criminalizing payment of initiative
petition circulators violated the First Amendment. The law restricted political speech by limiting
“the number of voices” that could spread the proponents’ message, making less likely the
chances that proponents could “garner the number of signatures necessary to place the matter on
the ballot.” 486 U.S. at 420-23. The Supreme Court applied “exacting scrutiny” because the
3
The Plaintiffs have always contended that there was not adequate infrastructure to
support the Opus project, both at the time Ordinances A and B were passed and when the permits
were issued. However, because Columbia residents cannot by referendum address administrative
actions, the sufficiency of downtown infrastructure is not relevant to Plaintiffs’ claims here.
10
statute restricted “the type of interactive communication concerning political change that is
appropriately described as ‘core political speech.’” Id. at 420-22.
The Eighth Circuit concluded Meyer did not apply to the First Amendment claim before
it in Dobrovolny. In contrast to the Colorado statute, the Nebraska procedure did not impact the
communication of the plaintiffs’ message, restrict circulation of the initiative petition, restrict the
plaintiffs’ ability to communicate with voters, nor regulate the content of the plaintiffs’ speech.
126 F.3d at 1112-13. Any difficulty of the process alone was “insufficient to implicate the First
Amendment, as long as the communication of ideas associated with the circulation of petitions is
not affected.” Id. “Meyer does not require us to subject a state's initiative process to strict
scrutiny in order to ensure that the process be the most efficient or affordable. Absent some
showing that the initiative process substantially restricts political discussion[,]... Meyer is
inapplicable.” Id. (citing Biddulph v. Mortham, 89 F.3d 1491, 1498 (11th Cir. 1996), cert.
denied, 519 U.S. 1151 (1997)). The Eighth Circuit concluded that the Nebraska procedure did
not restrict circulation of initiative petitions or communication of speech, “political or
otherwise,” and therefore did not violate the First Amendment. Id. at 1113.
As for their due process claim, the Dobrovolny plaintiffs argued they had a property
interest at stake in their initiative campaign because they had invested time, money, and effort in
the process, as well as a liberty interest affected by their inability to know the exact number of
signatures needed in advance. Id. The Eighth Circuit disagreed:
Clearly, the right to a state initiative process is not a right
guaranteed by the United States Constitution, but is a right created
by state law. See Taxpayers United for Assessment Cuts v. Austin,
994 F.2d 291, 295 (6th Cir.1993). Moreover, the procedures
involved in the initiative process, including the calculation of the
number of signatures required to place an initiative measure on the
ballot, are state created and defined. Therefore, if any right to the
initiative process or specifically to prior notice exists, it is
dependent upon a finding that state law has created in [the
plaintiffs] an interest substantial enough to rise to the level of a
11
“legitimate claim of entitlement” protected by the Due Process
Clause. Board of Regents v. Roth, 408 U.S. 564 [ ] (1972);
Montero v. Meyer, 13 F.3d 1444, 1447 (10th Cir.), cert. denied, 513
U.S. 888 [ ] (1994).
Id. It is always up to a state to “’to interpret [the] scope and availability’” of any state-conferred
right or interest. Id. (quoting Biddulph, 89 F.3d at 1500 (quoting Gibson v. Firestone, 741 F.2d
1268, 1273 (11th Cir.1984)). “’[A] liberty interest created by state law is by definition
circumscribed by the law creating it.’” Id. (quoting Montero, 13 F.3d at 1450). Thus, the
Dobrovolny plaintiffs could “claim no constitutionally-protected right to place issues before the
Nebraska electorate; any opportunity to do so must be subject to compliance with state
constitutional requirements.” Id. Furthermore, because the plaintiffs had no right under state
law to prior notice of the exact number of signatures required to place an initiative measure on
the ballot, they had “no right or interest which would entitle them to due process protection.” Id.
In Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006), the
Tenth Circuit rejected a First Amendment challenge similar to the one rejected by the Eighth
Circuit in Dobrovolny. In Walker, wildlife and animal advocacy groups challenged a Utah
constitutional provision requiring a supermajority for passing wildlife-related initiatives, but not
other initiatives. The advocacy groups focused primarily on the argument that the supermajority
requirement burdened core political speech by making passage of wildlife initiatives more
difficult. Disagreeing, the Tenth Circuit explained that “[a]lthough the First Amendment protects
political speech incident to an initiative campaign, it does not protect the right to make the law,
by initiative or otherwise.” Id. at 1099. Thus, that court had previously struck down laws
“dictating who could speak (only volunteer circulators or registered voters) or how to go about
speaking (with name badges and subsequent reports).” Id. (citing Am. Const. Law Found., Inc. v.
Meyer, 120 F.3d 1092, aff’d sub. nom., Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182
(1999)). The court explained that the “distinction is between laws that regulate or restrict the
12
communicative conduct of persons advocating a position in a referendum, which warrant strict
scrutiny, and laws that determine the process by which legislation is enacted, which do not.” Id.
at 1099-1100.
The Tenth Circuit did not doubt the advocacy groups’ sworn statements that they “found
the heightened threshold for wildlife initiatives dispiriting, and [felt] ‘marginalized’ or
‘silenced’” by it. Id. at 1101. But not “every structural feature of government that makes some
political outcomes less likely than others—and thereby discourages some speakers from
engaging in protected speech—violates the First Amendment.” Id. at 1100. In other words,
“[t]he First Amendment ensures that all points of view may be heard; it does not ensure that all
points of view are likely to prevail.” Id. at 1101. See also 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.”)
The Eighth Circuit cited Dobrovolny as controlling, and discussed Walker and Biddulph
with approval, in Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 676-77 (8th Cir.
2012). In Missouri Roundtable, the district court dismissed a political organization’s claim that
its First Amendment Rights were violated when Missouri officials prepared summaries for its
proposed ballot initiatives. The political organization claimed the summaries “stymied and
frustrated” its efforts to communicate its messages. Id. at 668. The Eighth Circuit affirmed.
The Missouri law that required the state officials to prepare the summaries did not limit the
number of petition circulators or regulate how many persons they could approach in attempting
to gather signatures, nor did it restrict the speech of petition circulators. Id. at 676. Circulators
were free to express disagreement with the officials’ summaries, affix their own summaries, and
prepare a written message explaining in what way they believed the state officials’ summaries
are misleading or deficient. Id. The state officials’ summaries did not purport to be the petition
13
circulators’ speech. Id.
Here, the Plaintiffs’ First Amendment and Due Process claims are similar to the ones
rejected in Dobrovolny, Walker, Biddulph, and Missouri Roundtable. The referendum process
under the City Charter does not dictate who may speak, nor regulate the content of the speech.
As previously discussed, the City did not violate the City Charter during the referendum process.
The Plaintiffs also complain about the Mayor’s criticism of Referendum Petition A.
While the Free Speech Clause restricts government regulation of private speech, it does not
regulate government speech. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009)
(citing Johanns v. Livestock Marketing Assn, 544 U.S. 550, 553 (2005)). “A government entity
is entitled to say what it wishes and to select the views that it wants to express.” Id. (citing
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); Rust v. Sullivan,
500 U.S. 173, 194 (1991)). “It is the very business of government to favor and disfavor points of
view.” National Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J.). Further,
elected officials are to be given the widest latitude to express their views on issues of policy. See
Bond v. Floyd, 385 U.S. 116, 135-136 (1966). City Council members had a First Amendment
right to express their opinions on the referendum petitions, and were not required to publicly
support them.
Finally, in their supplemental suggestions, the Plaintiffs rely on Ariz. State Legis. v. Ariz.
Indep. Redistricting Comm’n, 135 S.Ct. 2652 (2015), arguing the Supreme Court has recognized
that in disputes “between citizens and their elected government, the citizens must prevail.”
[Doc. 99, p. 17.] That case involved Arizona citizens’ attempt to exercise their right to initiative,
as expressly provided in the Arizona Constitution, to seek to establish congressional districts by
independent commission. The Supreme Court held that the people’s use of the initiative did not
run afoul of the Elections Clause of the United States Constitution, or 2 U.S.C. § 2a(c), which
14
regulates federal redistricting. The Supreme Court did not hold that the people’s initiative powers
were unlimited, or that such powers arose independently of the Arizona Constitution.
The Defendants are entitled to summary judgment on Plaintiffs’ First and Fourteenth
Amendment claims.
C.
The Plaintiffs’ remaining arguments
Plaintiffs argue that Section 3 of Ordinance B creates an unconstitutional condition.
Section 3 states:
In the event a referendum petition is not filed by the voters with
the City Clerk pursuant to City Charter Article XVII requesting a
repeal of this ordinance within the timeframe allowed for filing a
referendum petition under City Charter, [Ordinance A] shall
hereby be repealed in its entirety.
[Doc. 51-2, p. 1.]
Generally, the unconstitutional conditions doctrine “is implicated when the government
seeks a quid pro quo that limits the exercise of a person's constitutional rights in exchange for a
government benefit.” Vickie J. Williams, Life Sciences Dual Use Research of Concern, Public
Health and Safety, and the Doctrine of Unconstitutional Conditions, 7 ST. LOUIS U. J. HEALTH L.
& POL’Y 81, 83-84 (2013) (summarizing cases). See also Rust v. Sullivan, 500 U.S. 173, 197
(1991) (“[O]ur ‘unconstitutional conditions’ cases involve situations in which the Government
has placed a condition on the recipient of [a] subsidy rather than on a particular program or
service, thus effectively prohibiting the recipient from engaging in the protected conduct outside
the scope of the federally funded program.”).
Assuming for the sake of argument that participation in a local referendum process is a
“benefit” to which the doctrine could apply, which is far from clear, Section 3 of Ordinance B
extracted no quid pro quo for citizen participation in the referendum process. Section 3 does not
say that citizens cannot seek to repeal Ordinance B. It merely says that if there is no petition to
15
repeal Ordinance B then Ordinance A is repealed, thereby preventing two ordinances that are
materially the same from being in effect at the same time.
The Plaintiffs’ requests for declaratory and injunctive relief are also denied because all of
their claims have failed on the merits.
IV.
Conclusion
Defendants City of Columbia and Matthes’ motion for summary judgment [Doc. 42] is
granted.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 21, 2015
Jefferson City, Missouri
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