MISSOURI CIRCUIT COURT

TWENTY-SECOND CIRCUIT
(City of St. Louis)


MARY ERIN NOEL, et al., )
)
Plaintiffs, )
)
v. ) No. 1422-CC00249
) Div. 18
BOARD OF ELECTION COMMISSIONERS, )
etc., et al., )
)
Defendants. )

FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER AND JUDGMENT

Plaintiffs, citizens and taxpayers of the City of St. Louis,
bring this action to prevent submission of an initiative proposition
to their fellow citizens of the City. After hearing, the Court
entered a preliminary injunction preventing submission of the
initiative at a special election. At the trial on the merits, members
of the committee of petitioners were granted leave to intervene as
defendants. The parties submitted the case on the preliminary
injunction record, the pleadings, exhibits and testimony of the
principal draftsman of the initiative. Having considered the record,
the Court now enters its findings of fact, conclusions of law, order
and judgment. Issues on which no specific finding is made are deemed
found in accordance with the result reached. Objections not
heretofore expressly ruled on will be deemed overruled, with the Court
considering such evidence only for permissible purposes.
Findings of Fact
1. Plaintiffs herein are individuals and a limited liability
company residing in the City of St. Louis and are taxpayers thereof.
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2. Defendant Board of Election Commissioners is the duly
authorized and acting election authority within and for the City of
St. Louis.
3. Defendant City of St. Louis is a constitutional charter
city of Missouri.
4. Intervenor defendants are members of a committee of
petitioners who prepared and circulated petitions to the voters of the
City of St. Louis, proposing an amendment to the Charter of the City
of St. Louis consisting of a new article XXVII, entitled "Sustainable
Energy Policy." See Pl.Ex. 2, 3. (For convenience, the Court
hereinafter will sometimes refer to the proposition as the
"sustainable energy amendment.")
5. The committee of petitioners presented petitions reflecting
22,639 signatures of registered City voters to the Election Board, and
the Board duly certified the petitions to the Board of Aldermen.
Pl.Ex. 4. The Board of Aldermen did not act to submit the proposition
to the voters. Pl.Ex. 1. The Election Board accordingly proceeded to
call a special election for April 8, 2014, and began preparations for
holding the election. The estimated cost of a special election,
payable from public funds, is $500,000. The cost of submitting the
proposition at a general election would be less, but will necessarily
entail expenditures of public funds attributable specifically to the
sustainable energy amendment. See Pl.Ex. 8 for the manner of printing
ballot propositions in the past.
6. The ballot form adopted by the Board for submitting the
sustainable energy amendment will not contain a summary of the
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initiative proposition, but will instead present the entire text of
the proposition. Pl.Ex. 5.
7. Plaintiffs allege that the energy initiative is
procedurally and substantively invalid and seek a declaratory judgment
to that effect. Count I of the petition alleges that charter
amendments by initiative are not permitted under Mo.Const. art. VI,
32, governing the charter of the City of St. Louis. Count II alleges
that the initiative proposition is invalid on its face as exceeding
the powers of the City as a constitutional home rule city in that the
sustainable energy amendment would conflict with numerous statutes.
Count III alleges that the proposition is invalid on its face as
entailing an appropriation of public funds contrary to Mo.Const. art.
III, 51. Count IV alleges numerous procedural defects in the
initiative petition: it is addressed to the City's Board of Aldermen
and not the Election Board; it illegally demands that the Board of
Aldermen adopt the proposition instead of submitting it to the voters;
the enacting clause is defective; the summary of the proposition in
the initiative petition is false and misleading; and the initiative
petition fails to fully disclose the text of the proposition. Count V
alleges that the proposed ballot summary, or the presentation of the
proposition in full, presents the proposition in an unlawful manner.
Count VI alleges that the proposition is void on its face as denying
equal protection of the laws to the "unsustainable energy producers"
identified in the proposition. Finally, count VII seeks injunctive
relief.
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8. The initiative petition (Pl.Ex. 2) summarized the proposed
charter amendment as follows:
A proposed ordinance submitting to the registered voters of the
City of St. Louis an amendment to the City Charter enacting a new
Article XXVII setting forth the right to a sustainable energy
future; requiring the City to create and publish annual and 5-
year Sustainable Energy Plans; and, prohibiting the City from
granting any Public Financial Incentives to any Unsustainable
Energy Producer (the full text of which appears attached to this
petition.)

9. The proposed charter amendment (Pl.Ex. 3) declares a "right
to a sustainable energy future" and prescribes the establishment of a
"sustainable energy policy." Proposition, 1. The operative section
of the proposition provides that the City "shall not grant any Public
Financial Incentives to an Unsustainable Energy Producer." Id.,
2(a). Section 2(b) directs the Mayor to create and publish an annual
and a 5-year "sustainable energy plan" that must include "concrete
opportunities" for public financial incentives to preferred energy
producers and initiatives, availability of City property (including
property of the Land Reutilization Authority and the Land Clearance
for Redevelopment Authority) to individuals and groups for
"sustainable energy initiatives," and the preferential use of locally
generated energy.
10. As used in the sustainable energy amendment, a "public
financial incentive" means any "economic or financial incentive
offered or provided by the City," including "without limitation" any
forms of tax relief or reduction, any tax increment financing, and
reduction, credit or subsidy related to any bond, loan or similar
arrangement, and the ability to form or receive any economic benefit
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from any special taxation district. Proposition, 3(b). As defined,
"public financial incentive" also expressly includes "any monetary or
non-monetary benefit related to any public fund or program."
Proposition, 3(b)(iii), emphasis added.
11. As used in the sustainable energy amendment, the term
"Unsustainable Energy Producer" means any entity or organization
engaged "primarily in the mining or extraction of . . . fossil fuels,
coal, natural gas, oil, nuclear and radioactive materials, or other
energy sources that are non-renewable," Proposition 3(c). The
definition goes further to include any entity or organization that
"transacts at least $1,000,000 of business per calendar year" with the
other defined "Unsustainable Energy Producers." Id.
12. The sustainable energy amendment authorizes citizen suits
to enforce its terms and contains a severability clause. Proposition,
4-5.
13. The evidence at trial from intervenor defendants included
the testimony of the principal draftsman of the sustainable energy
amendment, Arielle Klagsbrun, as well as numerous exhibits indicating
that the use of fossil fuels in the American economy has undesirable
consequences, and that public financial incentives designed to promote
economic activity in the City of St. Louis (and elsewhere) have not
produced much in the way of benefits to the City or the public
generally. E.g., Pl.Ex. A-D, H, I. There is also evidence in the
record that financial firms and law firms, who come within the broad
definition of "unsustainable energy producer," have benefited from
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public financial incentives in the City in the past and would likely
be denied such benefits under the sustainable energy amendment.
14. It appears from the record that the purpose of the
sustainable energy amendment is twofold: (a) to compel the City to
adopt a sustainable energy plan which entails, in part, forwarding
what are commonly described as "green energy" or "renewable energy"
projects in the City; and (b) to prevent grant of tax incentives to
the disfavored "Unsustainable Energy Producers" in an effort to damage
their competitive position in the marketplace, by indirectly
increasing their costs of doing business. Neither side presented
competent expert testimony on the economic impact of the sustainable
energy amendment if its provisions were in fact implemented.
15. Plaintiffs presented some evidence to impugn the motives of
intervenor defendants and their supporting organizations and to
suggest that they entertain a radical socialist agenda and have been
critical of the Court. Pl.Ex. 9-11. The Court regards this evidence
as immaterial.
16. Intervenor defendants' witness acknowledged that, in her
opinion, the sustainable energy amendment could apply to charitable
organizations and not-for-profit organizations if they qualify as
"unsustainable energy producers" as defined in the amendment, i.e., if
they receive $1,000,000 or more from such producers. She denied that
the amendment would operate to deny "unsustainable energy producers"
the benefits of police and fire protection from the City.
17. The City of St. Louis currently maintains a "sustainable
energy plan," developed and paid for by federal or state grants. To
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formulate a plan as required by the sustainable energy amendment would
entail expenditure of approximately $500,000 of City funds, not
counting possible "renewable energy" or "sustainable energy"
incentives. Prelim.Inj. Tr. 35-36. Of course, the amendment by its
terms compels no appropriation and mandates no particular project to
be subsidized, and it is not altogether clear to the Court why the
existing, grant-funded plan could not be modified at little additional
expense.
18. Plaintiffs presented evidence from Rodney Crim, an expert
in economic development in the metropolitan area, concerning the
potential consequences of a literal interpretation of the sustainable
energy amendment. Discounting much of Crim's testimony about perverse
consequences, the Court nevertheless finds that, if adopted by the
voters, the amendment would in fact exclude a variety of enterprises
from qualifying for benefits under the existing statutory regime of
economic incentives or, in intervenors' parlance, corporate welfare.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject
matter. 527.010 et seq., RSMo; City of Kansas City v. Chastain,
420 S.W.3d 550 (Mo.banc 2014); J.C.W. ex rel. Webb v. Wyciskalla, 275
S.W.3d 249 (Mo.banc 2009). There is no absolute requirement that the
sustainable energy amendment be submitted to the voters at an election
to be held in April of 2014; if otherwise permitted, defendant Board
can submit the amendment at another election. See State ex rel.
Blackwell v. Travers, 600 S.W.2d 110 (Mo.App.E.D. 1980).
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2. According to City of Kansas City v. Chastain, 420 S.W.3d at
554-55:
Missouri law authorizes courts to conduct pre-election review of
the facial constitutionality of an initiative petition. See
Missourians to Protect the Initiative Process v. Blunt, 799
S.W.2d 824, 828 (Mo.banc 1990); Kansas City v. McGee, 364 Mo.
896, 269 S.W.2d 662, 664 (Mo. 1954)(courts may review a law to be
enacted by initiative to determine its constitutionality). The
idea underlying this rule is that pre-election review of the
facial constitutionality of an initiative petition is warranted
given the "cost and energy expended relating to elections" and to
avoid the "public confusion generated by avoiding a speedy
resolution of a question ...." Blunt, 799 S.W.2d at 828. The
circuit court had the authority to engage in pre-election review
of the facial constitutionality of the initiative petition.

3. The Court rejects intervenors' position that the scope of a
facial challenge to an initiative proposition is limited to matters of
form or procedure, e.g., dual subject matter, illegal appropriation,
and the like, and that plaintiffs lack standing to assert their equal
protection claims. In light of the unqualified language of Chastain,
the Court concludes that pre-election review of the validity of an
initiative proposition is permitted to the extent that the defect is
patent on the face of the proposition. Thus, plaintiffs, as
taxpayers, have standing to attack the sustainable energy amendment on
its face, regardless of the basis of the theory of facial invalidity.
Of course, the Court cannot and will not entertain constitutional
claims that depend on "as applied" invalidity or on claims not
apparent from the face of the initiative proposition.
4. Article V of the City Charter (of which the Court takes
judicial notice, Mo.Const. art. VI, 33) provides as follows:
Section 1 Use authorized

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The people shall have power, at their option to propose
ordinances, including ordinances proposing amendments to this
charter, and to adopt the same at the polls, with the same effect
as if adopted by the board of aldermen and approved by the mayor,
such power being known as the initiative. It shall be exercised
as hereinafter provided, subject to the provisions of this
charter.

Section 2 Petition required.

Such an ordinance shall be proposed by petition signed by
registered voters equal in number to five percent or, in case the
proposed ordinance is for the submission of an amendment to the
charter, ten percent of all the registered voters of the city at
the time of the last preceding regular mayoralty election. Each
of the papers comprising the petition shall contain the proposed
ordinance in full and designate by names and addresses five
persons as the committee of the petitioners.

Section 3 Procedure employed in recall to be followed.

Each such petition and the papers comprising same shall be
governed by, and proceedings shall be had thereon in accordance
with, the provisions of section 3 and 5 of article III concerning
the recall, but construing said sections with reference to the
petition and the sufficiency thereof required by this article.

5. Article III of the Charter provides as follows:
Section 3 Same--How signatures affixed.

The signatures need not all be appended to one paper, but all
papers comprising the petition shall be uniform in character and
shall each be verified by affidavit stating that each signature
thereto was made in affiant's presence by, as affiant verily
believes, the person whose name it purports to be. Each signer
shall state, opposite his signature, his residence address. Any
person shall be deemed a registered voter whose name is unerased
on the registration books.

Section 5 Same--Filing and certification.

All papers comprising the petition shall be assembled by the
petitioners and filed with the board of election commissioners as
one instrument, and within ten days thereafter said board shall
find and certify as to the sufficiency of the petition, stating
the number of registered voters signing. If the petition is
certified to be insufficiently signed, supplemental papers
conforming to the requirements for the originals may be filed
within twenty days thereafter, and said board, within ten days
after such supplements are filed, shall find and certify as to
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the sufficiency of the petition, so supplemented. If found still
insufficiently signed, no further supplement shall be allowed,
but a new petition may be filed.

6. Plaintiffs' theory that charter amendments are precluded by
Mo.Const. art. VI, 32(a) is not viable. Although that section refers
to amendments proffered by the City's "lawmaking body," nothing in
that section forbids the City from providing by its charter for
amendments by initiative or defines "lawmaking body" to exclude the
citizenry themselves. Furthermore, contrary to plaintiffs' position,
Mo.Const. art. VI, 19(a) and 20 must be viewed as supplementing
32(a), see Wunderlich v. City of St. Louis, 511 S.W.2d 753 (Mo.banc
1974), and 20 clearly authorizes charter amendments by initiative.
Since 19(a), 20 and 32(a) are in pari materia, they should be
construed together and harmonized where possible. In any event, the
Court concludes that this issue was resolved in the otherwise infamous
case of Pitman v. Drabelle, 183 S.W. 1055 (Mo.banc 1916), in which it
was declared, "we may dismiss from view any consideration of the
suggestion that the amended charter of the city of St. Louis is out of
harmony with the Constitution or laws of the State in so far as it
provides for the exercise by the people of that city of the power to
legislate by the initiative." 183 S.W. at 1056. (To be sure, the
Constitution of 1875 used the term "lawmaking authorities," and
Mo.Const. art. VI, 32(a) uses the term "lawmaking body," but the
Court perceives no intention by the change in language in 1945 to
overrule Pitman in this respect. On the contrary, the express
recognition, in art. VI, 31 of the 1945 constitution, of the City's
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existing charter--a charter that contained the initiative provision
upheld in Pitman--strongly indicates otherwise.)
7. The City Charter is elliptical in regard to the form and
sufficiency of initiative petitions, and the general statutes on the
subject are applicable to a very limited degree. See 115.019,
115.700, 116.020. In regard to the form and sufficiency of the
initiative petitions, the Court must accord a very liberal view to
procedural niceties of the initiative process, particularly given the
imprecision of the governing instrument, the City Charter. See, e.g.,
Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d
824, 827 (Mo.banc 1990); United Labor Committee v. Kirkpatrick, 572
S.W.2d 449 (Mo.banc 1978). In particular, failure to adhere to mere
technical formalities should not deny the people the power to propose
changes to the City Charter; substantial compliance with the governing
procedural requisites is all that is required. See Committee for a
Healthy Future v. Carnahan, 201 S.W.3d 503, 512 (Mo.banc 2006).
8. There is no question that the petition's language directed
to the Board of Aldermen is defective, since the Board of Aldermen has
no authority to adopt charter amendments by itself. The most it could
do is agree to submit the proposed charter amendment to the voters,
but that agreement is not a condition precedent to a vote. The Court
agrees that article V, 4 of the Charter must be construed as a mere
notification procedure to permit the Board of Aldermen to endorse the
proposed amendment, or to give the petitioners time to withdraw it,
but the petition itself should be addressed to the Election Board.
Similarly, the enacting clause of the proposed amendment is not
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consonant with a Charter amendment; but, in the case of Charter
amendments, the Court concludes that no enacting clause as such is
required.
9. The formal deficiencies of the petition are not sufficient
to preclude submission of the proposition to the voters. This is so
because, in dealing with initiatives, the Court must construe the
procedural requirements liberally, and must ensure that the voters are
given the last word wherever feasible, absent fraud or some other
fatal impediment. Cf. Committee for a Healthy Future v. Carnahan,
supra; United Labor Committee, supra.
10. The Board has mooted the claim concerning the ballot summary
by planning to print the proposed amendment in full on the ballot.
Although the Charter contemplates a summary, the Court cannot conceive
of any basis to condemn the Board's procedure, given that the
proposition fits conveniently on a single page and so can be easily
reviewed by the voters.
11. The summary of the proposition appearing on the initiative
petitions wholly fails to advise the signer about the definitions of
"Public Financial Incentives" and "Unsustainable Energy Producer." A
voter who reads only the petition summary will not know what these
terms, or even the term "unsustainable energy," really mean. In
particular, the summary is silent on the extension of the definition
of "Unsustainable Energy Producer" to embrace entities or
organizations doing more than $1,000,000 worth of business with an oil
company. However, intervenors can hardly be faulted for employing the
sort of selective disclosure that is well within customary bounds of
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bill titles and initiative ballot titles. See, e.g., Billington v.
Carnahan, 380 S.W.3d 586 (Mo.App.W.D. 2012)(affirming ballot language
as fair and sufficent despite obvious distortions). More importantly,
however, the deception alleged in this case is beyond the authority of
the Court to remedy. See State ex rel. Dienoff v. Galkowski, ED 99832
(Mo.App.E.D. 2014); Cole v. Carnahan, 272 S.W.3d 392 (Mo.App.W.D.
2008). Article V of the Charter prescribes only that the initiative
petition contain the text of the proposition and the names of the
committee of petititoners. The petition conforms to those
requirements. In light of Dienoff, the Court concludes that if there
is any justiciable pre-election claim about the sufficiency of the
summary of an initiative proposition, it must be found in an
affirmative, material misrepresentation about the subject matter of
the proposition (e.g., it tells signers that the proposition relates
to abortion but it actually provides for a transit tax) or in the
omission of the full text from the petition for review by the
prospective signer. Cf. State ex. inf. McKittrick v. Kirby, 162
S.W.2d 990 (Mo.banc 1942)(charter requirements regarding clear title
of ordinances inapplicable to proposed charter amendments). The
petition's form is proof against pre-election challenge.
12. As a constitutional charter city, the City of St. Louis
enjoys all powers expressly conferred by law and all powers which the
General Assembly has authority to confer upon any city, "provided such
powers are consistent with the constitution . . . and are not limited
or denied either by the charter . . . or by statute." Mo.Const. art.
VI, 19(a). The authority of a city under 19(a) is not, however,
14
without meaningful limits, and the most significant limitation is that
municipal legislation may not invade the province of general
legislation involving the public policy of the state as a whole. See
Yellow Freight Systems, Inc. v. Mayor's Comm. on Human Rts., 791
S.W.2d 382 (Mo.banc 1990); Alumax Foils, Inc. v. City of St. Louis,
959 S.W.2d 836 (Mo.App.E.D. 1997); Mager v. City of St. Louis, 699
S.W.2d 68 (Mo.App.E.D. 1985).
13. The Court concludes that, on its face, the initiative
proposition is invalid as in direct conflict with a plethora of
Missouri "economic development" or tax incentive statutes. In their
post-trial brief, plaintiffs allude to a score or more of such
statutes, but the Court need advert to only two: the "TIF" statute,
99.800 et seq., and the "special business district" statute,
72.790 et seq., RSMo. Both of these statutory schemes set out the
manner in which their benefits are to be secured. They do not mandate
that the City of St. Louis (or any other municipality) adopt such
programs and, in regard to "TIF" plans, the statutes establish an
elaborate review and recommendation procedure before any city can
approve a redevelopment plan calling for tax increment financing. On
the other hand, the statutes contain no limitations as to the classes
of persons or entities which are eligible to submit "TIF" plans or
establish special business districts. The sustainable energy
amendment unquestionably would engraft upon the statutes an exclusion
of a class of "unsustainable energy producers" from participating in
or receiving benefits from "TIF" plans or special business districts.
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Indeed, that is one of the primary purposes of the sustainable energy
amendment.
14. The sustainable energy amendment would prohibit that which
state statutes permit, namely the participation of entities defined by
the amendment as "unsustainable energy producers" in programs under
the statutes. Given that these statutes set out the public policy of
the Missouri in regard to "TIF" and special business districts, and
given that they do not exclude any class of persons or organizations
from participation, it follows that the sustainable energy amendment
prohibits what these statutes permit, and so the amendment is beyond
the charter authority of the City of St. Louis. In this connection,
the Court is guided by State ex rel. Hazelwood Yellow Ribbon Comm. v.
Klos, 35 S.W.3d 457 (Mo.App.E.D. 2000), in which the Court of Appeals
held that an initiative charter amendment was not within a charter
city's power under Mo.Const. art. VI, 19(a), because the amendment
purported to forbid the exercise of the power of eminent domain in
connection with a "TIF" plan. Because the "TIF" statute expressly
authorized use of eminent domain, the Court held that the charter
amendment was in conflict with the statute and could not be submitted
to the voters.
15. The artful attempt of intervenor defendants to distinguish
Hazelwood is ineffective. The sustainable energy amendment does more
than "shape" the City's discretion in the administration of "TIF"
plans: it forbids the City even to consider a plan that would benefit
an excluded group. Intervenors' reliance on City of Kansas City v.
Carlson, 292 S.W.3d 368 (Mo.App.W.D. 2009) is misplaced. In that
16
case, a Kansas City ordinance enacted a ban on smoking in bars. This
was held not to conflict with a general statute which prohibited
smoking only in restaurants. The reasoning of Carlson seems specious,
but specious or no, the Carlson reasoning cannot be extended to the
situation in the case at bar, in which the amendment seeks to carve
out a disfavored class from receiving benefits that the "TIF"
statutes, and many other statutes, would permit. Compare State ex
rel. Teefey v. Bd. of Zoning Adjustment, 24 S.W.3d 681 (Mo.banc
2000)(Zoning Enabling Act preempted local ordinance) with State ex
inf. Hannah ex rel. Christ v. City of St. Charles, 676 S.W.2d 508
(Mo.banc 1984)(Sawyer Act preempted annexation procedures, foreclosing
annexation by charter amendment).
16. Likewise, the sustainable energy amendment seeks to exclude
"unsustainable energy producers" from forming, directing or receiving
"any economic or financial benefit from any special taxation
district." At a minimum this provision would plainly be applicable to
special business districts formed under 71.790 et seq., RSMo 2000 &
Supp. Again, nothing in the relevant statutes authorizes or
contemplates the exclusion of any class of enterprises from forming or
obtaining benefits from a special business district. Even construing
the initiative proposition so as to avoid illegality or absurd
results, the Court cannot escape the conclusion that the initiative is
in irreconcilable conflict with the special business district
statutes.
17. The Court does not accept plaintiffs' assertion that the
sustainable energy amendment amounts to an appropriation initiative
17
foreclosed by Mo.Const. art. III, 51. First, the amendment does not
require any appropriation to implement its central provisions. The
requirement that the Mayor develop "sustainable energy plans" imposes
a new duty on the Mayor, but does not compel the Mayor to expend
anything more than personal energy on the task. Functionally, the
amendment's imposition of a duty is no different than any other
legislative requirement that the Mayor, as chief executive of the
City, implement any other law. Second, the amendment mandates no
particular "concrete opportunity" or anything in the way of a specific
program or expenditure. Thus, the amendment more closely resembles
the proposition at issue in City of Kansas City v. Chastain, supra,
which was not found to constitute a violation of art. III, 51.
18. As cogently argued by the intervenor defendants, absent
involvement of a "suspect class," the scope of classification
permitted lawmakers under the Equal Protection Clauses of the federal
and state constitutions is very broad, and, so long as the Court can
conceive of any rational basis for a legislative distinction, the
Court is compelled to defer to the legislature's judgment.
Distinctions based on wealth are not ordinarily "suspect," and
regulations of occupations are seldom subject to successful equal
protection attack. In addition, legislation is not required to
address all aspects of a problem comprehensively or at one time, but
may operate gradually or on a piecemeal basis. See, e.g., Glossip v.
Mo. Dept. of Transp. & Highway Patrol Empl. Retirement System, 411
S.W.3d 796 (Mo.banc 2013) and cases cited therein. "The Constitution
presumes that, absent some reason to infer antipathy, even improvident
18
decisions will eventually be rectified by the democratic process and
that judicial intervention is generally unwarranted no matter how
unwisely we may think a political branch has acted." Vance v.
Bradley, 440 U.S. 93, 97 (1979). Relying on these principles,
intervenor defendants insist that, on its face, the sustainable energy
initiative is rationally related to the legitimate goal of reducing
usage of fossil fuels and encouraging the use of other energy sources
in the City of St. Louis, and therefore is impervious to equal
protection challenge. The Court disagrees.
19. In addition to the elementary principles adumbrated above,
it is equally well settled that the touchstone of equal protection is
that persons similarly situated shall be treated similarly, and that
business organizations are "persons" entitled to equal protection as
well as other constitutional rights. E.g., Citizens United v. Federal
Election Comm., 558 U.S. 310 (2010). Furthermore, legislation that is
designed to "fence out" selected classes from the full rights of
citizens can be found defective under equal protection principles. As
the Supreme Court put it in Romer v. Evans, 517 U.S. 620, at 633-34
(1996):
It is not within our constitutional tradition to enact laws of
this sort. Central both to the idea of the rule of law and to our
own Constitution's guarantee of equal protection is the principle
that government and each of its parts remain open on impartial
terms to all who seek its assistance. "'Equal protection of the
laws is not achieved through indiscriminate imposition of
inequalities.'" . . . Respect for this principle explains why
laws singling out a certain class of citizens for disfavored
legal status or general hardships are rare. A law declaring that
in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a
denial of equal protection of the laws in the most literal sense.
19
"The guaranty of 'equal protection of the laws is a pledge of the
protection of equal laws.'" [Citations omitted.]

20. In this case, the classification created by the sustainable
energy amendment of "unsustainable energy producers" arguably may be
rational, if this class was being singled out for different regulatory
treatment because of its economic characteristics. Certainly lawful
regulation of business enterprises may constitutionally run the gamut
from complete prohibition to imposition of conditions so burdensome as
to make the enterprise commercially impossible. However, the
amendment at issue in this case is not really a regulation of business
activity: it is an act of exclusion of a disfavored group from
general benefits under a wide range of government programs. Moreover,
this disfavored group is not defined solely by the direct activities
of its members. The definition of the class embraces any entity "that
transacts at least $1,000,000 of business" per year with direct
producers of fossil or nuclear fuels, regardless of whether that
business involves purchase of fuels or not. Under this expansive
definition of "unsustainable energy producers," a host of lawful
businesses are barred from participating in a wide range of
governmental programs and benefits (if not basic services), even
though these businesses do not themselves engage in the production of
the disfavored fuels. Further, the hypothetical effect of such
deprivation is so attenuated as to be virtually non-existent. Nothing
in the record shows that there is any rational basis to believe that
excluding law firms and financial firms that do business with coal or
oil companies from "TIF" benefits, special business district
20
formation, urban redevelopment corporation formation, industrial
development, "brownfield" credits, etc., will have any measurable
economic impact on the competitive position of coal or oil companies.
The definition of the class of "unsustainable energy producers" lends
itself ineluctably to an inference that the amendment is actuated
primarily by antipathy toward any fossil or nuclear fuel producer and
anyone having a substantial association with such producers.
21. Under equal protection analysis, to find a rational
relationship between a classification and a legitimate governmental
objective, there must be some basis for a reasonable person
objectively to believe that the legislative means are connected to the
legislative ends. Here, the Court can conceive of no rational
justification for the wholesale exclusion of lawful enterprises from
the benefits of a wide variety of general laws, simply because they
happen to do business with coal or oil companies--companies that are
not shown even to be located within the City of St. Louis and so not
likely to be prevented from obtaining desired legal or financial
services from other enterprises wholly unaffected by the proscription
contained in the sustainable energy amendment.
22. The sustainable energy amendment strongly resembles the
statute invalidated in Pettit v. Field, 341 S.W.2d 106 (Mo. 1960), in
which retail merchants were arbitrarily excluded from eligibility for
licensing to sell money orders and the like. The exclusion was
regarded as irrational, since it was not based on any legitimate
regulatory need or policy. Here, the exclusion of a class of entities
who do not themselves engage in disfavored energy production from the
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benefits of many state economic development or incentive statutes is
similarly arbitrary.
23. Considered as a whole and in light of its plain language,
the manifest purpose of the sustainable energy amendment is not so
much to advance the use of approved fuels, as to punish enterprises
which deal in the disfavored fuels and to punish the enterprises which
deal with the disfavored energy producers for their presumed role in
furthering the business of the disfavored producers. On its face, the
amendment lacks a rational relationship to a legitimate governmental
end and is unconstitutional. To be sure, intervenors have every right
to disapprove of and seek regulation or even the prohibition of the
production or use of fossil or nuclear fuels, but they must do so in
conformity to the constitution, which, like it or not, protects fossil
fuel producers as well as anarchists.
24. The Court is of course cognizant of the severability clause
set out in the imitative proposition. The presence of that clause,
however, does not shield the proposition from its facial invalidity.
The Court is not at liberty to rewrite the ballot proposition in such
manner as to salvage the planning provisions, or to elide the punitive
and unconstitutional provisions, and put a redacted proposition before
the voters. The Court cannot assume that the persons who signed the
petition would have done so absent its unconstitutional features.
More importantly, the severability clause is insufficient to save the
measure. The prohibition of "public financial incentives" is at the
heart of the proposition. To strike out Section 2 of the proposition
22
is to leave an empty shell. See Pettit v. Field, supra; cf. Hazelwood
Yellow Ribbon Committee, supra, 35 S.W.3d at 471.
25. The Court has addressed all claims pleaded in the petition
so as to ensure that the record is complete and, in the event the
Court's conclusions as to one claim are erroneous, there will be no
difficulty in securing appellate review of other claims. See Smith v.
City of St. Louis, 395 S.W.3d 20 (Mo.banc 2013). However, the Court
is aware of the precept that constitutional claims should be avoided
where feasible, and that a declaratory judgment is not a vehicle for
advisory opinions. Accordingly, the Court will dismiss the equal
protection claim as moot in light of the judgment resting on Mo.Const.
art. VI, 19(a). The Court's judgment will declare the rights and
duties of the parties on all of the other claims because, as was the
case in Dienoff, supra, there seems a strong likelihood that
intervenors will revamp their initiative, and so the claims regarding
the authority of the citizens of the City of St. Louis to initiate
charter amendments and the formal requirements of such initiatives are
not moot. Similarly, the scope of defendant Board's discretion in
settling on the form of submitting such initiatives is the subject of
a live, justiciable controversy on this record. See Missouri Alliance
for Retired Americans v. Dept. of Labor, etc., 277 S.W.3d 670 (Mo.banc
2009); State ex rel. Dienoff v. Galkowski, supra.
ORDER AND JUDGMENT
In light of the foregoing, it is
ORDERED, ADJUDGED AND DECREED that plaintiffs have judgment
against defendants on counts II and VII of the petition herein and
23
that it is declared that the initiative proposition proposing a new
Article XXVII to the Charter of the City of St. Louis, which
proposition is in the record as Plaintiffs' Exhibits 2 and 3, is
illegal and void on its face as exceeding the authority of the City of
St. Louis as provided by Mo.Const. art. VI, 19(a); and it is
FURTHER ORDERED, ADJUDGED AND DECREED that defendant Board of
Election Commissioners, its members, officers, agents, employees,
attorneys and all persons acting in concert with them with notice of
this Order be and they are hereby permanently restrained and enjoined
from expending public funds or otherwise taking any steps to place on
the ballot at any special or general election the proposition
purporting to amend the Charter of the City of St. Louis by adding new
article XXVII, as set forth in Plaintiffs' Exhibits 2 and 3; and it is
FURTHER ORDERED, ADJUDGED AND DECREED that defendants have
judgment against plaintiffs on counts I, III, IV and V of the petition
herein and it is declared that the citizens of the City of St. Louis
have the right to propose amendments to the Charter of the City of St.
Louis by initiative as provided in said Charter, that the form of the
initiative proposition in evidence, Plaintiffs' Exhibit 2, is in
substantial conformity to law; and that the defendant Board of
Election Commissioners, in its discretion, may submit to the voters
initiative propositions under the Charter of the City of St. Louis by
ballot setting forth either a fair and adequate summary of such
propositions or the full text thereof; and it is
FURTHER ORDERED that count VI of the petition is dismissed
without prejudice as moot; each party herein to bear own costs.
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SO ORDERED:


___________________________
Robert H. Dierker
Circuit Judge

Dated: ______________, 20__
cc: Counsel/parties pro se/Amicus Curiae