Appellate court upholds ruling nixing county police standards

Stenger undecided whether to appeal to Supreme Court

Steve Stenger

Steve Stenger

By Gloria Lloyd

In the latest blow to County Executive Steve Stenger’s effort to hold the 57 police departments in the county to minimum standards, a state appellate court last week upheld a lower court’s decision to throw out the rules.

In a majority opinion issued Jan. 10, the Eastern District of the Missouri Court of Appeals denied every one of the county’s legal arguments and sided with every point made by Sunset Hills and the 11 other cities suing over the county’s police standards.

In a statement, Stenger said he is still weighing whether to appeal the decision to the Missouri Supreme Court.

“Meanwhile, my administration remains committed to ensuring consistent, quality law enforcement throughout St. Louis County,” the county executive said, pointing to a proposed countywide half-cent sales tax for police and public safety that is on the April ballot.

Sunset Hills City Attorney Robert E. Jones made the oral arguments for the cities both on appeal last month and at the initial trial in May where now-retired St. Louis County Circuit Judge Robert Cohen threw out the “invalid and unenforceable” standards.

A three-judge panel of the appeals court came to the same conclusion after looking at the case “de novo,” or from the beginning, with a presumption that the ordinance is legal unless proven otherwise.

“I’m pleased with the result, but I’m not surprised,” said Jones.

He refers to the standards as a “police takeover” and has called the law “draconian” for its potential enforcement measures on cities that don’t comply with the standards, including fines or jail time for mayors, police chiefs and aldermen.

County Counselor Peter Krane repeated to the judges at oral arguments Dec. 7 that he believes the county has the power to regulate city police departments because policing falls under the clauses of the county Charter and state law that allow the county to legislate matters of public health countywide.

Relying on that justification, the County Council approved the law 4-3 at Stenger’s suggestion in December 2015.

In court, Judge Robert Dowd was clearly skeptical of Krane’s position, and he wrote the majority opinion that the county law is illegal under both the county Charter and the Missouri Constitution because it did not have voter approval and is not a public-health measure. Judge Angela Quigless also signed on to Dowd’s opinion.

The argument that policing is not public health is probably the strongest argument against the standards, because if policing is public health, everything is, Jones said.

“To characterize this as a public-health measure would open up the possibility that the county could, for example, take control of parks in the municipalities because when people use the parks, they are healthier,” Jones said. “There are absurd arguments that could be made as a result of it.”

State and county legislators never intended policing to fall under public health since they both created separate departments for them, Dowd noted.

When Stenger proposed the standards to the County Council in 2015, he called them a post-Ferguson effort to ensure every county citizen has access to good police services.

The American Civil Liberties Union, or ACLU, filed a “friend of the court” brief with the appellate court arguing that policing is so bad in some county cities that the county has to pass police standards in order to regain the trust of its citizens that it needs to function as a government.

But during Krane’s argument last month, the judges told him that a noble aim on the part of county officials is irrelevant to whether the law should stand.

“However real, important and urgent the need might be, the county can only legislate if it has the authority to do so,” Dowd wrote in his opinion. “Thus, the only question here is whether the ordinance was a valid exercise of the county’s authority …”

In a separate concurring opinion, Judge Lisa Van Amburg also sided with the cities but for different reasons. Whereas Dowd and Quigless agreed that the standards violated both the county Charter and the Missouri Constitution, Van Amburg believes that they only violated the Charter.

Van Amburg appeared to be the judge most sympathetic to the county’s argument last month, mentioning that she could envision the court deciding that the law is constitutional but its enforcement is not.

But her concurring opinion focused on one aspect of legal reasoning and did not address the reasons behind the law.

“As the majority notes, 2.1820.21 of the Charter authorizes the county to perform municipal services and functions ‘when accepted by a vote of a majority of the qualified electors …,’” Van Amburg wrote. “This requirement alone is fatal to the county’s position.”

The County Council enacted the standards over the objections of city police chiefs, mayors and municipal law firm Curtis Heinz Garrett & O’Keefe, whose partner Leland Curtis promised the council his attorneys would sue on behalf of its many client cities if the legislation passed.

Curtis outlined to the council many of the same legal objections that Jones continues to make, including that the Charter requires voters to approve countywide legislation not related to public health.

“I think it was a rather straightforward issue because the county’s own Charter required approval by majority vote, and that’s what they did in the ’70s,” Jones said. “And it was pretty evident that they failed to do it this time.”

But Dowd outlined what he saw as the county’s changing legal positions in briefs and oral arguments on appeal. Cohen ruled that the police standards require a vote under Section 18(c) of the county Charter.

In the county’s opening appeal brief, however, the county argued that the Charter language of “when” a proposition is sent to voters could mean “if” instead of a mandate. But Dowd wrote that the county also made the simultaneous conflicting argument that if the Charter did require voter approval, the county had gained that when it added the Charter provisions in the 1970s that it believes gives the county the right to enact countywide standards.

The appeals court objected to what it described as the county’s changing legal reasoning that “morphed” into contradictory arguments. The county even contradicted itself in side-by-side paragraphs in legal filings, according to the ruling.

“In the next breath of the reply brief, however, the county returned to its position that voter approval is optional based on its construction of the word ‘when,’” Dowd wrote.

The county changed its justification again at oral arguments, he wrote, a “shifting position” that he said could signal how uncomfortable the county is that voters did not approve the standards. The county’s argument that common words could have multiple meanings also did not sit well with Dowd.

“While ‘and’ can mean ‘or,’ and vice versa, most commonly ‘and’ simply means ‘and,’” he wrote. “The county has failed to show a strong reason for construing ‘and’ to mean ‘or.’”