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City of Olivette Missouri v. St. Louis County Missouri

Court of Appeals of Missouri, Eastern District, Third Division

January 10, 2017

CITY OF OLIVETTE, MISSOURI, et al., Respondents,
v.
ST. LOUIS COUNTY, MISSOURI, et al, Appellants.

         Appeal from the Circuit Court of St. Louis County Hon. Robert S. Cohen

          ROBERT G. DOWD, JR., Judge

         St. Louis County and Steve Stenger, County Executive, (collectively "the County") appeal from the summary judgment finding that the County did not have authority to enact an ordinance imposing countywide minimum standards for police. We affirm.

         In December of 2015, the St. Louis County County Council adopted and approved an ordinance authorizing the County Executive to issue minimum police standards that would apply to the police departments of cities wholly or partly located in St. Louis County ("the Ordinance").[1] The Ordinance begins with the following recitals: there are 57 municipal police departments within St. Louis County; there are disparities between these departments' standards; there is an "inherent inequality of services" as a result; St. Louis County wants to ensure equal access to "consistent, quality public health and safety services;" and "uniform fundamental standards will enhance public health and reinforce trust between law enforcement and the community." The Ordinance states that it was promulgated under authority found in its charter, the state constitution and statutes and was enacted to "enhance the public health, safety and welfare" of the people of St. Louis County.

         The Ordinance requires cities to submit police standards for approval by the County Executive. The County Executive has discretion under the Ordinance to determine whether a city is in compliance with the minimum standards he issues or is otherwise operating with deficient policing services. Enforcement mechanisms in the Ordinance include pursuing equitable relief, prosecution and takeover of police services in the non-compliant city by the St. Louis County police department at the city's expense. The County Executive immediately issued minimum police standards pursuant to the Ordinance. The standards impose requirements for the licensing, training and hiring of law enforcement officers and for police department accountability and transparency.

         Shortly after the standards were issued, the City of Olivette and other cities in St. Louis County ("the Cities") filed petitions challenging the County's authority to enact the Ordinance.[2] The Cities and the County filed cross-motions for summary judgment. The County contended that the Ordinance was a valid exercise of the powers granted to it as a charter county in Article VI, Sections 18(b) and 18(c) of the Missouri Constitution. Article VI, Section 18(b) requires a charter county to include provisions in its charter for the exercise of powers conferred specifically to it by the state constitution and the laws of the state. St. Louis County's charter includes such a provision.[3] One of the powers conferred by the state is found in Section 192.300 of the Missouri Revised Statutes, which authorizes counties to enact ordinances that enhance public health and prevent disease. Separate and apart from the authority found in that statute or section of the constitution is the power granted to charter counties by Article VI, Section 18(c) to perform the services and functions of a municipality or other political subdivision, except school districts. This authority is often referred to as a charter county's "police powers." The trial court concluded that the County was not authorized to enact this Ordinance under either of these constitutional provisions or the public health statute and entered judgment in the Cities favor. This appeal follows.

         At the outset, the County asks this Court to take judicial notice of the following as set forth in its brief:

The events which occurred in Ferguson after the Michael Brown shooting have become part of the history of the St. Louis area. In the aftermath of the events, it came to light that a number of police departments located in St. Louis County were lacking in quality standards by which most operate. Since that time it has come to be common knowledge that when police departments operate with poor or non-existent standards, there is often a negative impact upon the citizenry.

         It is common knowledge that Michael Brown was shot by a police officer in Ferguson, which is in St. Louis County, and that "events" occurred thereafter. We decline to deem the County's opinion about the quality of the standards in city police departments in St. Louis County to be a fact of common knowledge appropriate for judicial notice. This Court is aware of the issues that have come to light in the aftermath of events in Ferguson, as set out in the amicus curiae brief filed in support of the County by the American Civil Liberties Union of Missouri Foundation ("ACLU"). The ACLU asserts there are the following problems with municipal policing in St. Louis County: undue focus on generating revenue over public safety needs, racial bias, inconsistent standards and the so-called "muni shuffle, " in which problem officers are shuffled among departments without formal discipline. It cites the published results of the United States Department of Justice's investigation into the Ferguson police department, a study of the police response to the events following the shooting of Michael Brown in Ferguson and other similar reports and commentary on these issues. The County believes, and the ACLU agrees, that countywide minimum police standards will help address these problems.

         But proof-by taking judicial notice of the above or otherwise--that there is a need for improved policing standards in the municipal police departments of St. Louis County is simply not necessary for resolution of the issue before us. However real, important and urgent the need might be, the County can only legislate if it has the authority to do so. Thus, the only question here is whether the Ordinance was a valid exercise of the County's authority under the powers conferred by Article VI, Section 18(b) of the Missouri Constitution and Section 192.300 of the Missouri Revised Statutes or Article VI, Section 18(c) of the Missouri Constitution. Our review of this issue of law resolved on summary judgment is de novo, and the Ordinance is presumed valid and enforceable. Missouri Bankers Association. Inc. v. St. Louis County, 448 S.W.3d 267, 271 (Mo. banc 2014). We begin with the County's arguments regarding Article VI, Section 18(c).

         Section 18(c)

         The current form of Article VI, Section 18(c) of the Missouri Constitution was adopted by voter approval in 1970. It provides;

The charter may provide for the vesting and exercise of legislative power pertaining to any and all services and functions of any municipality or political subdivision, except school districts, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county may contract with any municipality or political subdivision in the county and perform any of the services and functions of any such municipality or political subdivision.
The charter may provide for the vesting and exercise of legislative power pertaining to any and all services and functions of any municipality or political subdivision, except school districts, throughout the entire county within as well as outside incorporated municipalities; any such charter provision shall set forth the limits within which the municipalities may exercise the same power collaterally and coextensively. When such a proposition is submitted to the voters of the county the ballot shall contain a clear definition of the power, function or service to be performed and the method by which it will be financed.

         This grant of authority pertains to the performance of the services and functions of a municipality both outside of and within incorporated areas of the county. The County has, in accordance with the first paragraph above, provisions in its charter that authorize it to exercise this power in unincorporated areas by ordinance. See St. Louis County Charter, Sections 2.180.22 and 2.180.23 ("the council shall have, by ordinance, the power to. . . [f]urnish or provide within the part of the county outside incorporated cities any service or function of any municipality or political subdivision, except school districts" and to "[e]xercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities, and on such other subjects as may be authorized by the constitution or by law"). A county may also perform such services and functions countywide-outside of and within incorporated cities-or within a particular municipality by contract, and the second paragraph of Section 18(c) sets out what must be in the charter provision and on the ballot proposition. St. Louis County's charter provision corresponding to that constitutional authority is as follows: "the council shall have, by ordinance, the power to . . . [p]rovide the terms upon which the county shall perform any services and functions of any municipality or political subdivision in the county, except school districts, when accepted by a vote of a majority of the qualified electors voting thereon in such municipality or subdivision, which acceptance may be revoked by a like vote; ...


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