St. Louis Mayor Francis Slay and County Executive Charlie Dooley have a vision of the day when the city and county of St. Louis will be reunified. Recent developments addressing the Arch grounds, the riverfront and downtown St. Louis have moved the city/county reunification idea closer to reality.
Few people know the history, contained in an obscure 1990 Missouri Supreme Court opinion, Millsap v. Quinn, 785 S.W.2d 82 (Mo. banc 1990), which creates the legal vehicle for the creation of a Board of Electors under Article VI, Section 30 of the Missouri Constitution. The board is created when a specified number of voters in the city and county sign a petition that is filed with the state’s election officials. Nine members are appointed to the board by the mayor, nine members are appointed by the county executive and one member is appointed by the governor.
The purpose of the Board of Electors is to create a unification plan for specified purposes including “to formulate and adopt any other plan for the partial or complete government of all or any part of the city and the county.” If enacted by a majority of county and city voters, the board’s plan becomes the “organic law” of the city and county and “supersede[s] all laws, charter provisions and ordinances” that conflict with the plan.
This constitutional procedure has been successfully used twice in the history of Article VI. In 1876, the “Great Divorce” was initiated by the city when it separated from the county. In 1954, Article VI was used to create the Metropolitan St. Louis Sewer District.
In 1987, a reunification plan was presented to the voters based on the existing language of Article VI that permitted the creation of a Board of Freeholders. The term “freeholder” was later construed by the courts as requiring every member of the board to own land.
I was the principal lawyer who represented the Board of Freeholders in numerous court proceedings against a group opposing a reunification plan. We successfully defended the freeholder provision in the Missouri courts. The U.S. Supreme Court then agreed to review the case, and the attorney general of Missouri represented the state parties, including the Board of Freeholders. The U.S. Supreme Court unanimously reversed the Missouri Supreme Court’s opinion and held that the land ownership or “freeholder” requirement violated the U.S. Constitution’s equal protection clause.
Because the U.S. Supreme Court did not remand the case for further consideration in the Missouri Supreme Court, many observers concluded that the Board of Freeholders provision in Article VI of the Missouri Constitution could never be used again.
In one of the most remarkable cases in my 30 years of appellate litigation practice, I conceived of a successful strategy to save Article VI, which may one day lead to some form of reunification of the city and county of St. Louis. I filed a motion with the Missouri Supreme Court to sever the land ownership requirement from Article VI. This requirement was not essential to the purpose of Article VI that only requires the board members appointed by the mayor and county executive in the city and county to be electors or registered voters and one board member, appointed by the governor of Missouri, to be a resident of another county in Missouri.
The Missouri Supreme Court quickly ordered full briefing and oral argument on my motion. I am not aware of any other case in which the court has ruled on a motion, after full briefing and oral argument, which culminated in a published opinion. After an animated oral argument, the court reaffirmed, in its March 1990 opinion, the fundamental principles of federalism under which a state Supreme Court has the last word to interpret the language of the state’s Constitution.
The Missouri Supreme Court severed the land ownership or freeholder requirement for membership on the board. The court held that “elector” (or registered voter) should be substituted in place of “freeholder.” Article VI, therefore, remains constitutional and can be used to fulfill one of its central purposes of creating a legal vehicle to reunite the city and the county.
Jordan B. Cherrick practices in the areas of complex appellate, business, and constitutional litigation. He is a partner in the law office of Jordan B. Cherrick LLC in Ladue.
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