Cities, state AG on Cape's side in River Campus suit

Wednesday, September 19, 2001

JEFFERSON CITY, Mo. -- Many Cape Girardeans may not be too keen on financially supporting stadium projects in St. Louis and Kansas City, but those two cities have stepped up to help Cape Girardeau get its River Campus.

The state's two largest cities have filed friend-of-the-court briefs with the Missouri Supreme Court supporting Cape Girardeau in its legal battle with businessman James L. Drury over funding for Southeast Missouri State University's River Campus.

The Missouri Municipal League, which lobbies on behalf of member cities, and the state attorney general's office also filed briefs backing Cape Girardeau's position and urging the high court to take the case.

If the court declines to do so, a tax approved by city voters to fund the city's share of the project will be void. There is no deadline for the court to make its decision.

In June, a three-judge panel of the Missouri Court of Appeals Eastern District sided with Drury, ruling that the title of the August 1998 city ordinance that put the tax issue on the ballot violated the state Constitution and the city's own charter because it didn't describe in detail how the money would be used.

St. Louis, Kansas City and the others are weighing in not out of support of the River Campus but out of fear that if the lower court's ruling stands, an untold number of ordinances passed by municipalities throughout Missouri -- and perhaps even state statutes -- could be jeopardized.

Cape Girardeau city manager Michael Miller said he is hopeful the support will help convince the Supreme Court to hear the case.

"We felt this issue is a critical one of statewide interest," Miller said. "So, we were hoping to get support from other cities on this particular lawsuit."

Prior litigation

Walter S. Drusch, Drury's attorney, said the arguments raised in the briefs cover well-charted territory.

"These provisions here have been litigated many times," Drusch said. "I don't know what is the sudden interest in this situation. In reading the various briefs, you get the impression it is something new that causes mischief."

Drusch dismissed the notion that the appeals court ruling puts other cities' ordinances and state laws at risk.

At issue are the "honest title" -- also called "clear title" -- provisions of the state Constitution and the Cape Girardeau City Charter. Such provisions require that the title of legislation accurately reflect a measure's content in order to guard against passage of misleading legislation.

The title of the ordinance in question called for raising the city's hotel/motel/restaurant tax and placing the matter on the ballot. The Court of Appeals agreed with Drury that two sections of the ordinance were not covered by the title. Those sections specified that the money would be spent on the River Campus if the project went forward and that the tax would end if the state and Southeast failed to secure their shares of funding by Dec. 31, 2001.

In its request for review, Cape Girardeau asks the Supreme Court to consider a number of issues stemming from the case, including how detailed an ordinance title must be to be valid, if the standard for validity of a municipal ordinance title is the same as for a state statute and if validity of a measure should be presumed until proven otherwise.

Points of contention

Cape Girardeau and its supporters make similar arguments in court documents for why the Court of Appeals decision is in error:

The clear title provision isn't violated because the sections of the ordinance found offensive by the appeals court related to the measure's subject matter.

The appeals court ruling is contrary to established precedent.

Only the portions of an ordinance found not to be covered by the title may be declared invalid, not the entire ordinance.

Drury's lawsuit is, albeit indirectly, an attempt to overturn the results of an election and, therefore, was not filed in a timely manner, which under state law is within 30 days of an election.

State solicitor James Layton, who wrote the brief for attorney general's office, also argued that the ballot language put before voters was more detailed than the formal title of the ordinance approved by the city council, a fact that the appeals court ignored.

The ballot language clearly specified that the revenue from the 1-cent hike in the hotel tax would be used to help build "a performing arts center, museum and associated cultural facilities" for the city and university.

The tax passed with 53 percent voter support.

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