High court's questions probe River Campus suit

JEFFERSON CITY, Mo. -- Judges launched a heavy barrage of questions at attorneys arguing the River Campus dispute before the Missouri Supreme Court on Tuesday.

The court is being asked to decide the validity of a tax increase approved by Cape Girardeau voters in 1998 to help fund construction of a fine arts center for Southeast Missouri State University. A ruling is expected in March.

A decision upholding the tax would overrule lower courts that found the measure unconstitutional and prompted the city of Cape Girardeau to appeal.

The $36 million River Campus project has been on hold pending resolution of the lawsuit, brought by Cape Girardeau businessman James L. Drury and his MidAmerica Hotels Corp. The 1-cent hike in the city's hotel/motel tax at issue would provide $9 million for the project, with the remainder of funding coming from the state and private donors.

The issue the high court will decide is whether the city council ordinance that put the tax issue on the ballot violated requirements of the city charter and state Constitution that the content of legislation be clearly reflected in the measure's title.

Clear titles

James Mello, the St. Louis attorney representing Cape Girardeau, said lower courts erred in invalidating the tax, ignoring Supreme Court precedent on "clear title" issues.

Clear titles are required to prevent passage of deceptive or misleading legislation. There was no question as to what this measure would do, Mello said.

"I think clearly the title in a general way put people on notice that what was being considered was a tax increase," Mello said.

While the ordinance itself mentioned that the money raised by the tax would go toward the River Campus, that information was omitted from the title.

Mello said a title need not specifically include every provision of an ordinance but all sections must have a "common thread" that relates to the title. Pointing out how the tax revenue would be used carries that thread.

"It doesn't have to be a perfect title," Mello said. "It has to be an honest title."

While Mello fielded a number of inquires from the bench, Drury's attorney, Walter S. Drusch of Cape Girardeau, endured a more intense grilling, with judges continuing to ask questions for several minutes after Drusch's time for arguments had expired.

Judge Duane Benton noted that the ballot language presented to voters was more detailed than the ordinance title, specifying that the revenue would go for the River Campus.

Benton asked if it would have been better if the ballot question had been made the title.

"It would be a lot closer," Drusch replied.

Judge Ronnie White asked if Drusch, in saying the title was unclear, really meant it wasn't broad enough by lacking a reference to the River Campus. Drusch said the title was "under inclusive."

Common thread

Judge John Holstein then reminded Drusch that as long as the common thread is present, a piece of legislation is legal. Drusch said the common thread was lacking.

Judge William Ray Price Jr., after noting the court was "jumping all over" Drusch, focused on the fact that the ballot language contained more information than the ordinance title.

"It ultimately was not just passed by the city council, it was passed by all the people who voted," Price said. "If the ballot language fixes the problem of the title, why are we going back and looking at the ordinance?"

Holstein again jumped in, saying the court "gives great deference" to measures approved by voters. "This court has said after an election is held and voters approve, the court will bend over backward" to uphold a ballot measure, Holstein said.

If that is so, Drusch said the court should break with that policy. Because the ballot ordinance was faulty, the outcome of the election is irrelevant, he said.

Tossing out tax revenue

Several judges asked if tossing out just the section of the ordinance earmarking the tax revenue for the River Campus would be an acceptable remedy. Drusch said there is no provision in the city charter allowing portions of an ordinance to stand if others are struck down.

During rebuttal, Mello said it is the court's duty "to salvage as much of a legislative action as possible."

However, Holstein noted that a state law specifies that the legislature intends for remaining sections of any bill to be preserved if portions are deemed invalid, whereas individual city ordinances usually require a specific provision stating such intent.

With Chief Justice Stephen N. Limbaugh Jr. sitting out the case, White presided over the court. Platte County Associate Circuit Court Judge Gary D. Witt was appointed to fill Limbaugh's seat for the hearing.

mpowers@semissourian.com

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