IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
STATE OF MISSOURI
STATE OF MISSOURI EX REL.
THE CITY OF ST. LOUIS,

)
)
)
Relator,
)
)
v.
)
)
JERRY M. HUNTER,
)
PAUL M. MALONEY,
)
BENJAMIN M. PHILLIPS, and
)
JOSEPH A. BARBAGLIA, in their
)
official capacities as members of the
)
Board of Election Commissioners for the )
City of St. Louis,
)
)
Respondents.
)
)
HOLD SERVICE:
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300 N. TUCKER BLVD.
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ST. LOUIS MO 63101
)

Case No.
Division No.

PETITION IN MANDAMUS
COMES NOW Relator, the City of St. Louis (“City”), pursuant to Missouri Rule of Civil
Procedure 94, and for City’s Petition in Mandamus states as follows:
STATEMENT OF FACTS
1.

City is a constitutional charter city and municipal corporation established pursuant

to the laws of the State of Missouri.
2.

Respondents Jerry M. Hunter (“Hunter”), Paul M. Maloney (“Maloney”),

Benjamin M. Phillips (“Phiilips”), and Joseph A. Barbaglia (“Barbaglia”), named in their official
capacities, are the duly appointed commissioners of the Board of Election Commissioners for the
City of St. Louis (“Board of Election Commissioners”).

 3.

The Board of Election Commissioners is the election authority for the City of St.

Louis established pursuant to RSMo. § 115.010 et seq.
4.

Venue is proper in the Circuit Court of the City of St. Louis pursuant to RSMo. §

508.010 in that each Respondent may be found in the City of St. Louis.
5.

On April 4, 2017, a general municipal election was held in the City of St. Louis.

6.

Article V, Section I of the Charter of the City of St. Louis states as follows:

The people shall have power, at their option to propose ordinances, including
ordinances proposing amendments to this charter, and to adopt the same at the
polls, with the same effect as if adopted by the board of alderman and approved
by the mayor, such power being known as initiative. It shall be exercised as
hereafter provided, subject to the provisions of this charter.
City Charter, Art. V, § 1.
7.

Prior to the April 4, 2017 general municipal election and pursuant to Article V,

Section 2 of the Charter of the City of St. Louis, an ordinance titled “Proposition NS
(Neighborhood Stabilization) Ordinance” (hereinafter “Proposition NS”) was proposed by
petition. A copy of Proposition NS is attached hereto as “Exhibit 1.”
8.

Section 1 of Proposition NS (“Section I”) authorizes and directs the issuance and

sale of up to $40,000,000 in aggregate of general obligation bonds for the purpose of stabilizing
vacant residential properties owned by the Land Reutilization Authority of the City of St. Louis
and other public entities.
9.

The petition proposing Proposition NS was signed by the requisite number of

registered voters in the City. See City Charter, Art. V, § 2.
10.

Pursuant to Article V, Section 4 of the Charter of the City of St. Louis, the Board

of Election Commissioners found the signed petition proposing Proposition NS sufficient.

2

 11.

The Board of Election Commissioners then, pursuant to the lawful direction of

Article V, Section 4 of the Charter of the City of St. Louis, provided for the submission of
Proposition NS to the voters at the April 4, 2017 general municipal election. A copy of the
Official Ballot for the April 4, 2017 general municipal election is attached hereto as “Exhibit 2.”
12.

Of the 54,648 votes cast on Proposition NS, 32,005 (58.57%) voted “YES” and

22,643 (41.43%) voted “NO.” A copy of the Board of Election Commissioners’ Election
Summary Report is attached hereto as “Exhibit 3.”
COUNT I – WRIT OF MANDAMUS DIRECTING
RESPONDENTS TO CERTIFY AND DECLARE PROPOSITION NS ADOPTED
13.

City incorporates each of the allegations in paragraphs 1-12 above as if fully set

forth herein.
STATEMENT OF THE REASONS WHY THE WRIT SHOULD ISSUE
14.

Article V, Section 5 of the Charter of the City of St. Louis states in part as

follows:
If a majority voting on the proposed ordinance vote in favor thereof, it shall be
an ordinance of the city, in effect ten days thereafter, and the board of election
commissioners shall certify a copy thereof and the fact of its adoption to the
register who shall number said ordinance and file and preserve said copy and
certificate in his office.
City Charter, Art. V, § 5 (emphasis added).
15.

RSMo. § 115.507(1) provides as follows:

Not later than the second Tuesday after the election, the verification board shall
issue a statement announcing the results of each election held within its
jurisdiction…
16.

Pursuant to RSMo. § 115.499, the Board of Election Commissioners is the

“verification board” for purposes of RSMo. § 115.507(1).
17.

A majority of the persons voting on Proposition NS voted in favor thereof.

3

 18.

Pursuant to Article V, Section V of the Charter of the City of St. Louis and

RSMo. § 115.507(1), the Board of Election Commissioners has a clear, imperative, and
unconditional ministerial duty to certify and declare Proposition NS adopted.
19.

City has an existing clear, unconditional legal right to a certification and

declaration from the Board of Election Commissioner that Proposition NS is adopted.
20.

To date, the Board of Election Commissioners has failed and refused to certify

and declare Proposition NS adopted.
21.

The Board of Election Commissioners has therefore failed to execute its clear,

imperative, and unconditional ministerial duty to certify and declare Proposition NS adopted as
required by Article V, Section 5 of the Charter of the City of St. Louis and as required by RSMo.
§ 115.507(1).
RELIEF SOUGHT
22.

Pursuant to Missouri Rule of Civil Procedure 94.04, this Court should issue a

preliminary order in mandamus directing Respondents Hunter, Maloney, Phillips, and Barbaglia
to file an answer to this Petition in Mandamus within seven days.
23.

This Court should issue a writ of mandamus directing the Board of Election

Commissioners to certify and declare Proposition NS adopted as required by Article V, Section 5
of the Charter of the City of St. Louis and by RSMo. § 115.507(1).
WHEREFORE, City respectfully request that this honorable Court issue a writ of
mandamus directing the Board of Election Commissioner to certify and declare Proposition NS
adopted as required by Article V, Section 5 of the Charter of the City of St. Louis and as required
by RSMo. § 115.507(1).

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 COUNT II – WRIT OF MANDAMUS DIRECTING
RESPONDENTS TO ISSUE A STATEMENT ANNOUNCING
THAT PROPOSITION NS PASSED WITH THE REQUISITE FOURSEVENTHS SUPER MAJORITY NECESSARY FOR CITY TO INCUR DEBT
24.

City incorporates each of the allegations in paragraphs 1-12 above as if fully set

forth herein.
STATEMENT OF THE REASONS WHY THE WRIT SHOULD ISSUE
25.

RSMo. § 115.507(1) provides as follows:

Not later than the second Tuesday after the election, the [Board of Election
Commissioners] shall issue a statement announcing the results of each election
held within its jurisdiction and shall certify the returns to each political
subdivision and special district submitting a candidate or question at the election.
The statement shall include a categorization of the number of regular and
absentee votes cast in the election, and how those votes were cast; provided
however, that absentee votes shall not be reported separately where such reporting
would disclose how any single voter cast his or her vote.
RSMo. § 115.507(1) (emphasis added).
26.

Instead of issuing a statement announcing the results of the April 4, 2017 general

municipal election that includes a categorization of the votes cast and how they were cast, the
Board of Election Commissioners issued only a “Statement of Votes Cast,” which consists solely
of a categorization of the number of regular and absentee votes cast in the election and how those
votes were cast. The relevant portion of the “Statement of Votes Cast” pertaining to Proposition
NS is attached as hereto “Exhibit 4.”
27.

The “statement” issued by the Board of Election Commissioners did not announce

the result of the vote on Proposition NS as required by RSMo. § 115.507(1) in that the Board of
Election Commissioners did not announce that Proposition NS passed with the requisite foursevenths super majority provided for by Article VI, Section 26(b) of the Missouri Constitution.

5

 28.

As more fully set forth herein, Section I obtained the requisite four-sevenths super

majority necessary for City to incur debt and Proposition NS therefore clearly and unequivocally
passed. See Mo. Const. Art. VI, § 26(b).
29.

Article VI, Section 26(a) of the Missouri Constitution provides as follows:

No county, city, incorporated town or village, school district or other political
corporation or subdivision of the state shall become indebted in an amount
exceeding in any year the income and revenue provided for such year plus any
unencumbered balances from previous years, except as otherwise provided in this
constitution.
Mo. Const. Art. VI, § 26(a) (emphasis added).
30.

City has no authority to incur debt except as provided in the Missouri

Constitution.
31.

Article VI, Section 26(b) of the Missouri Constitution, the subsection invoked by

Proposition NS, provides as follows:
Any county, city, incorporated town or village or other political corporation or
subdivision of the state, by vote of the qualified electors thereof voting thereon,
may become indebted in an amount not to exceed five percent of the value of
taxable tangible property therein as shown by the last completed assessment for
state or county purposes, except that a school district by a vote of the qualified
electors voting thereon may become indebted in an amount not to exceed fifteen
percent of the value of such taxable tangible property. For elections referred to in
this section the vote required shall be four-sevenths at the general municipal
election day, primary or general elections and two-thirds at all other elections.
Mo. Const. Art. VI, § 26(b) (emphasis added).
32.

Proposition NS clearly and unequivocally passed with the requisite four-sevenths

super majority provided for by the Missouri Constitution.
33.

Pursuant to RSMo. § 115.507(1), the Board of Election Commissioners has a

clear, imperative, and unconditional ministerial duty to issue a statement announcing that
Proposition NS passed.

6

 34.

City has an existing clear, unconditional legal right to a statement from the Board

of Election Commissioners announcing that Proposition NS passed.
35.

To date, the Board of Election Commissioners has failed and refused to issue a

statement announcing that Proposition NS passed.
RELIEF SOUGHT
36.

Pursuant to Missouri Rule of Civil Procedure 94.04, this Court should issue a

preliminary order in mandamus directing Respondents Hunter, Maloney, Phillips, and Barbaglia
to file an answer to this Petition in Mandamus within seven days.
37.

This Court should issue a writ of mandamus issue directing the Board of Election

Commissioners to issue a statement announcing, as required by RSMo. § 115.507(1), that
Proposition NS passed with the requisite four-sevenths super majority necessary for City to incur
debt as provided by Article VI, Section 26(b) of the Missouri Constitution.
WHEREFORE, City respectfully request that this honorable Court issue a writ of
mandamus directing the Board of Election Commissioner to issue a statement announcing, as
required by RSMo. § 115.507(1), that Proposition NS passed with the requisite four-sevenths
super majority necessary for City to incur debt as provided by Article VI, Section 26(b) of the
Missouri Constitution.

7

 Respectfully submitted,
JULIAN BUSH,
CITY COUNSELOR
By: /s/ Michael A. Garvin
Michael A. Garvin #39817
Deputy City Counselor
Andrew D. Wheaton #65269
Associate City Counselor
Attorneys for Relator City of St. Louis
City Hall, Room 314
St. Louis, MO 63103
314.622.4594
garvinm@stlouis-mo.gov
wheatona@stlouis-mo.gov

Certificate of Service
I hereby certify that on Thursday, September 07, 2017, the foregoing was filed
electronically with the Clerk of the Court to be served by operation of the Court’s electronic
filing system on all counsel of record.
/s/ Andrew D. Wheaton

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