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ACLU lawsuit against Poplar Bluff dismissed

Monday, January 30, 2012

POPLAR BLUFF, Mo. -- A lawsuit filed by Barbara Rexroat and Katherine Carda against the city of Poplar Bluff and City Clerk Pamela Kearbey was dismissed Friday by U.S. District Judge Stephen Limbaugh in Cape Girardeau.

The American Civil Liberties Union filed the lawsuit Dec. 16 on behalf of Rexroat and Carda, who were among the signers of an open access initiative petition circulated by semo.net owner Brian Becker.

Rexroat and Carda alleged voters who signed the petition had been deprived of the initiative process without due process and in violation of state law. They claimed state law required only 831 signatures to get the open access issue on the ballot, but the city had determined 3,136 signatures were required by state law.

In granting the city's motion to dismiss the lawsuit, Limbaugh ruled "there was no statutory violation in the city's refusal to process the initiative petition." The due process claims, which were based on the argument the city failed to follow the statutes, "must likewise fail."

ACLU lawyers claimed the city violated Section 78.200 when Kearbey failed to certify Becker's petition had a sufficient number of valid signatures. They contended signatures equal to 25 percent of the votes cast for all candidates for mayor at the last election were needed.

Since Poplar Bluff operates under the council-manager form of government and the council elects the mayor, they said the number of signatures required is based on the number of people voting for council candidates at the most recent election. The ACLU determined 3,324 votes were cast for the seven council members when each were last elected. Therefore, 25 percent would mean 831 signatures were required.

Duncan contended 3,136 signatures were required because that is 25 percent of the 12,544 registered voters. He said the state law applicable to Poplar Bluff requires that 25 percent of the registered voters must sign a petition in order to get an issue on the ballot.

"To avoid this statute and its more onerous one-fourth of all the registered voters requirements, plaintiffs engage in a complicated statutory analysis," Limbaugh wrote in his memorandum.

Becker started the petition drive after the Poplar Bluff City Council on May 9 terminated its policy to provide open access to the city's broadband communication system. He submitted the petition Nov. 7 and an amended petition Nov. 28.

"We are very happy with the court's decision," Poplar Bluff city attorney Wally Duncan said. "We felt all along the court would see things our way. We felt the law was on our side."

"Pam Kearbey did everything properly," Duncan said. "We felt the lawsuit should never have been filed in the first place."

City manager Doug Bagby said he was "very pleased with the judge's decision."

"We had talked with the Missouri Municipal League and our attorneys and knew we were acting under the right state statute," Bagby said. "Our opponents acted on a statute that was not applicable to us."

Attempts to contact the ACLU lawyers were unsuccessful, but Becker made the following comments on his website:

"It is with great sadness that I write to the people of Poplar Bluff informing you the federal court has handed down a decision opposing our petition.

"I believe that open access is the single most powerful impetus to true growth for our city, but at every turn this belief has been thwarted, ridiculed and fought by our city officials.

"I congratulate Doug Bagby and the City Council. As you enjoy your victory and pat each other on the back for a job well done, I hope that you recognize you silenced your citizens, you deafened yourselves to the point of harm, and spent city funds to defeat the desires of the citizens who put you in office."

Pertinent address:

Poplar Bluff, Mo.

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