Rebuild Saint Louis, Inc. 4231 Laclede Avenue St. Louis, MO 63108 Mr. Adolphus Pruitt President, St. Louis City Chapter, NAACP 4811 Delmar Blvd. St. Louis, MO 63108 Via email to pruitt@stlouisnaacp.org Mr. Al Bond Via email to abond@carpdc.org Executive Secretary- Treasurer St. Louis-Kansas City Carpenters Regional District Council 1401 Hampton Ave St. Louis, MO 63139 July 13, 2020 Re: Initiative Petition for Charter Amendment The undersigned have been requested to provide a legal opinion on whether the “Petition for Charter Amendment” (“Petition”) certified as sufficient by the St. Louis City Board of Election Commissioners (“Election Board”) and transmitted to the City of St. Louis Board of Aldermen (“Board of Aldermen”) on July 2, 2020 will qualify for the November ballot if the Board of Aldermen goes on recess on or before September 3, 2020 until its scheduled return September 11, 2020. For the reasons outlined below, because the Board of Aldermen by recessing until September 11, 2020, will have taken unequivocal action that prevents the Board of Aldermen from adopting the Petition without amendment, the Clerk of the Board of Aldermen upon recess, must take now the ministerial steps necessary to officially notify the BOE of the Board of Aldermen’s failure to approve the Petition. Article VI, Section 32(a) of the Missouri Constitution provides: The charter of the city of St. Louis now existing, or as hereinafter amended or revised, may be amended or revised for city or county purposes from time to time by proposals therefor submitted by the lawmaking body of the city to the qualified voters thereof, at a general or special election held at least sixty days after the publication of such proposals, and accepted by three-fifths of the qualified electors voting for or against each of said amendments or revisions so submitted. The Supreme Court of Missouri has specifically held that “…the people of Missouri by Art. VI Sections 31, 32(a) and 32(b), have granted the people of St. Louis the power to write and to amend their own charter and to provide therein the kind of city government which they want.” State ex rel. St. Louis Fire Fighters Ass’n Local No. 73, AFL-CIO v. Stemmler,479 S.W.2d 456, 459 (Mo. Banc 1972). The Missouri Supreme Court has determined that the initiative process in the Charter of St. Louis expressly authorizes amendments to the Charter by initiative and that the process complies with the provisions of the Missouri Constitution. State ex rel. Hussmann v. St. Louis, 5 S.W.2d 1080, 1083-1084 (Mo. banc 1928). Additionally, Article VI, Section 20 of the Missouri Constitution specifically allows constitutional charter cities, such as the City of St. Louis, to change their charter by citizen initiative petition as long as it is signed by not less than 10% of voters: Amendments of any city charter adopted under the foregoing provisions may be submitted to the electors by a commission as provided for a complete charter. Amendments may also be proposed by the legislative body of the city or by petition of not less than ten percent of the registered qualified electors of the city, filed with the body or official having charge of the city elections, setting forth the proposed amendment. The legislative body shall at once provide, by ordinance, that any amendment so proposed shall be submitted to the electors at the next election held in the city not less than sixty days after its passage, or at a special election held as provided for a charter. Any amendment approved by a majority of the qualified electors voting thereon, shall become a part of the charter at the time and under the conditions fixed in the amendment; and sections or articles may be submitted separately or in the alternative and determined as provided for a complete charter. By Constitution, the Board of Aldermen is directed to place a citizen initiated proposed charter amendment to the voters at the “…next election held in the city not less than sixty days after its passage, or at a special election held as provided…” . A. City Counselor Bush's Recent Letter overlooks both the Language of the Constitution and Important Case Law. In an opinion issued this afternoon, the City Counselor ignores the above cited Missouri Supreme Court precedent and the plain language of Article VI, Section 20 of the Missouri Constitution to claim that voters in the City of St. Louis do not have the right to change their charter by a citizen initiative petition. But these are important provisions and critical to any fair legal analysis. If the City Counselor were correct, Proposition P which was passed overwhelmingly by the voters in April of 2007, is null and void. Proposition P was a citizen initiated charter amendment that prohibits the sale, lease, donation or disposition of park property without a vote of the people. According to the City Counselor’s letter this charter amendment is in violation of the Missouri Constitution and is null and void. He is simply wrong. In 2017, Proposition A, citizen initiated petition to eliminate the Recorder of Deeds and use the savings realized thereby to fund a police body cameras was placed on the November ballot. Interestingly, neither the City Counselor, nor members of the Board of Aldermen raised any of the claims now contained in Mr. Bush’s opinion issued today. Finally, the City Counselor’s dismissal of the case State ex rel. Blackwell v. Travers, 600 S.W.2d 110 (Mo. Ct. App. 1980) is completely inappropriate. In that case, the Court of Appeals issued an order of mandamus requiring the Election Board to place a citizen initiated petition on the ballot for voter approval. Mr. Bush claims this case should be ignored because no one raised the issue of whether the Missouri Constitution permits the citizens of St. Louis to amend their charter by initiative petition. In doing so, Mr. Bush ignores well settled law that for a court to grant the extraordinary remedy of a writ of mandamus “there must be an existing, clear, unconditional legal right in relator, and a corresponding present, imperative, unconditional duty upon the fact of respondent, and a default by respondent.” State ex rel. Isselhard v. Dolan, 465 S.W.3d 496, 498 (Mo. Ct. App. E.D. 2015). If the petitioners lacked constitutional authority to change the City of St. Louis charter by initiative petition, the Court had the affirmative obligation, whether raised or not by the respondent (in this case, the Election Board) to determine whether Petitioners had the unconditional legal right to have their initiative petition for charter amendment placed on the ballot. The Court found the unconditional legal right and properly placed the initiative petition on the ballot. Isselhard is important and controlling precedent affirming the right of the citizens to control their own government. B. The Initiative Was Timely Submitted in Order to Qualify for the November Ballot Having found that citizens are entitled to amend their charter by initiative petition, we now turn to the claim that that Petitioners cannot comply with this provision of the City Charter in time to qualify for the November ballot. As outlined below, such a claim is unfounded.1 The Charter of the City of St. Louis (“Charter”) provides the process by which an initiative petition to amend the city’s charter is put on the ballot for voter approval. Article V, Section 4 provides in pertinent part: If the board of election commissioners find that the petition, with supplements, if any, is sufficient, it shall forthwith certify that fact, together with a copy of the petition, omitting signatures, to the board of aldermen. Unless the proposed ordinance is, without In response to Mr. Bush’s claim that any amendment to the City Charter requires two city wide votes we refer to the legal opinion on July 10, 2020 of undersigned Elkin Kistner. We also point out that not a single initiative petition in the State of Missouri or any local governmental entity has ever been put to voters twice. Again, Mr. Bush completely ignores Mo. Const. Article VI, section 20 which in no way could be read to require two city wide votes. In fact, his attempt to graft such a requirement places an impermissible barrier to the exercise of citizens’ fundamental constitutional right to propose amendments to the City Charter. 1 amendment, adopted and approved by the mayor, or adopted, without amendment, over his veto, within sixty days after the regular meeting of the board of aldermen next after said certification, or unless four members of the committee of the petitioners shall, within fifteen days after the expiration of said sixty days, state in writing to the clerk of the board of aldermen that there is no necessity for submitting the proposed ordinance to the voters, said clerk shall forthwith certify the failure to adopt same to the board of election commissioners. On June 22, 2020, the Committee of Petitioners submitted the Petition entitled “Petition for Charter Amendment” to the Election Board signed by over 41,000 St. Louis City voters. A true and accurate copy of the Election Board’s certification documentation is attached hereto as Exhibit 1. Pursuant to City Charter Article V, Section 2, to amend the Charter, Petitioners were required to submit signatures of “…ten percent of all the registered voters of the city at the time of the last preceding regular mayoralty election” or, at least, 19,687 signatures. If Petitioners wanted to trigger a special election within “ninety days if legally possible, otherwise at the earliest day on which such submission may be had at either a general or special election” then they were required to submit signatures of fifteen percent of city voters, or 29,531 signatures. City Charter, Article V, Section 4. Pursuant to Article III, Section 5 of the Charter, if the Election Board fails to certify the sufficiency of the petition, Petitioners are afforded the opportunity to file supplemental signatures within 20 days and the Election Board has an additional 10 days from then to certify the sufficiency of the Petition. If the supplement is still determined insufficient, no further supplements are allowed. The Election Board performed its duty to determine “if the signers of the Petition were registered voters in the City of St. Louis, Missouri” within ten (10) days as prescribed by the City Charter Article III, Sections 3 & 5. See also, Exhibit 1. On July 2, 2020, the Election Board verified at least 20,161 signatures for the Petition and certified the Petition sufficient to meet the ten percent threshold provided in Article V, Section 2 of the Charter. The Board of Election did not count all of the signatures submitted by Petitioners on June 22, 2020, nor was the Petition reviewed to determine if the Petition met the fifteen percent threshold to trigger a special election provided for in Article III, Section 5. On July 2, 2020, by hand-delivery, the Election Board transmitted its sufficiency certification to the Board of Aldermen. The Election Board stated: Unless the proposed ordinance is, without amendment, adopted in accordance with the provisions of Article V, Section 4 of the City Charter, the [Election Board] will submit the proposed ordinance to the voters in the City of St. Louis at the first election at which such submission may be lawfully had. Accordingly, the Board of Aldermen is provided sixty (60) days after receipt, or until September 6, 2020, to adopt the proposed Petition without amendment. It is well-settled law that this 60 day period is “permissive and nothing more.” Mulvoy v. Miller, 285 S.W. 504, 507 (1926). Meaning, that the Board of Aldermen can certainly take the entire 60 day period to act or as it did in the Mulvoy case, shorten such period of time by an unequivocal act that ensures it will not pass the Petition without amendment within the sixty days provided by the Charter. In this case, the Board of Aldermen is going into recess after its regularly scheduled meeting on Tuesday, July 14, 2020 until Friday, September 11, 2020. As such, as of the date of recess, the Board of Aldermen has made it abundantly and unequivocally clear that it will NOT be adopting the proposed Petition before September 6, 2020. Mulvoy, 285 S.W. at 507. The recess itself closes the door to the Board of Aldermen taking up the proposed Petition prior to the expiration of the sixty (60) day window (which expires on September 6, 2020). As a result, upon the vote to recess taken by the Board of Aldermen on Tuesday, July 14, 2020, the Board will have taken the action to shorten the sixty (60) day window. Then, upon recess of the Board of Aldermen, the clerk of the Board of Aldermen is obligated to “forthwith certify the failure to adopt same to the board of election commissioners.” City Charter, Article V, Section 4. Unless at least four of the members of the Committee of Petitioners agree not to go forward with the Proposed Petition within fifteen (15) days of July 14, 2020, the proposed Petition shall be placed on the next general or special election to be held by the City. The next general election is scheduled for November 3, 2020. City Charter, Article V, Section 4. Since the right to amend the Charter is guaranteed by the Missouri Constitution, the Board of Aldermen cannot delay an initiative from appearing on a general election ballot when sufficient signatures have been submitted and verified. Mo. Const., Art. VI, §20 and 32(a). The legislature may not "undercut or undo a law initiated by the people before it could ever be voted on" because it would be "an end run around the constitutionally protected right of the people. . . to enact legislation by ballot initiative." Earth Island Inst. v. Union Electric Co., 456 S.W. 3d 27, 34 (Mo. 2015).It is our opinion that, if the Clerk of the Board of Aldermen does not take the requisite notifications under Article V, Section 4 of the Charter, that a court would order such actions to be taken. Furthermore, it is our opinion that unless the Committee of Petitioners elects to withdraw the proposed Petition that the proposed Petition would be ordered to be placed on the ballot for the November 3, 2020 general election by a court. In conclusion, if the Board of Aldermen goes on recess on or before September 3, 2020 until the scheduled September 11, 2020 return date, the proposed Petition will, unless the Committee of Petitioners withdraws it, appear on the November 3, 2020 ballot for final approval. C. The Trust Provisions of the Initiative are Legal Binding and Protect the Funds for the Specific Uses Detailed in the Initiative We have been asked to further opine on the effect of the restrictions for the use of funds from both the St. Louis Rising Initiative Petition and also BB71. Some opponents have suggested that the current structure of the initiative and BB71 will not protect the fund for the specific uses detailed. This suggestion is without merit. Both proposed amendments to the Charter of the City of St. Louis contain provisions placing lease proceeds, obtained from a potential long-term lease of the St. Louis Lambert International Airport, in a series of funds denominated as “trust funds.” Each trust fund has specific and limited purposes for which the funds contained therein may be expended. If adopted by the voters, these amendments to the charter will have force and effect of law. The limitations on voter restricted funds are inviolate and such funds cannot be used for any other purpose. See e.g., City of St. Louis v. Senter Commission Co., 85 S.W.2d 21 (Mo. banc 1935), Meyers v. Kansas City, 19 S.W.2d 9001, 901 (Mo. banc 1929), and Armstrong v. Adair County, 990 S.W.2d 64 (Mo.App. W.D. 1999). The restriction of such trust funds to be “new and in addition to” does not affect the ability of the Board of Aldermen to change the amount of funding to existing programs, instead it only prevents the Board from using the new funds to funds such additional programs. See, Committee for a Healthy Future, Inc., v. Carnahan, 201 S.W.3d 503, 510 (Mo. banc 2006). Very Truly Yours, Stinson, LLP /s/Charles W. Hatfield Charles W. Hatfield BICK & KISTNER, P.C. /s/ Elkin L. Kistner Elkin L. Kistner ELLINGER and ASSOCIATES, LLC /s/ Marc H. Ellinger______ Marc H. Ellinger, s/Jane E. Dueker Principal, Jane E. Dueker, LLC Lewis Rice LLC /s/ David W. Sweeney