By Gloria Lloyd
Six members of the County Council are intervening as private individuals in a lawsuit aimed at keeping three of their proposed county Charter amendments off the ballot for the Aug. 7 primary.
Retired Franklin County Circuit Court Judge Gael D. Wood allowed the council to enter the case early on in a two-hour hearing last week on whether the Charter amendments are fit for voters to consider.
Kirkwood resident Jordan Grommet, 22, is suing the county Board of Election Commissioners alleging that the three amendments are misleading to voters. He is represented by Jefferson City attorney John Watson.
On the other side of the argument are the six members of the County Council — everyone except 5th District Councilman Pat Dolan, D-Richmond Heights. Wood allowed the council members to intervene as individuals rather than as an institution so that their own private attorney can file briefs and motions and make arguments to the court. The council overrode County Executive Steve Stenger’s vetoes 6-1 in May to place the amendments on the ballot.
Wood also allowed Affton resident Michael Burton, who is one of two candidates challenging Dolan in the Democratic primary Aug. 7, to enter the case as an interested taxpayer who wants to vote on the amendments.
Altogether, five sets of attorneys are involved in the case – Watson on one side versus attorneys for the Board of Election Commissioners, which is the only official defendant, the county counselors for St. Louis County, the County Council members’ private attorney Elkin Kistner and Burton’s attorney Daniel Flynn.
County election officials breathed a sigh of relief when they learned at the June 26 hearing that they won’t have to reprint ballots. Some voters have already started to vote on the amendments.
Although the election board is the only plaintiff, its attorney Steven Garrett said that the board had no interest in the case other than ensuring that ballots don’t have to be reprinted, a nightmare scenario in terms of cost and logistics and the same type of last-minute ballot change that led to a fiasco at the polls in 2016.
Watson agreed not to ask for new ballots to be printed if he wins the case. Instead, a sign could be posted that any votes cast for the Charter amendments will not be counted.
Wood originally thought he would have to deliver a ruling in the case by June 29, but with the issue of the ballots resolved, he said that he could take longer to review briefs and arguments from the numerous attorneys now involved in the case. Attorneys will get weekly deadlines in July to return their arguments, with a decision from Wood expected by the last week of July.
Wood was appointed to the case after judges from St. Louis County Circuit Court were recused because of a possible conflict of interest, likely because the council appropriates funding for the courts.
Under one amendment, the council would be able to hire a private attorney in cases where it saw a conflict of interest with the county counselor’s office. Another would change the definition of employment so that work as an independent contractor does not count as employment. A third would add campaign-finance limits of $2,600 for county offices and change how the county handles its budget and posts information on county websites.
In arguments, Watson said that the Charter amendments are written in a way that will confuse voters, with multiple issues tacked onto the finance measure and references in the employment amendment to state and federal statutes that are not listed in the ballot language.
Watson said that Grommet is suing “to ensure that voters are not voting on measures that are insufficient in many ways and an outgrowth of a political battle between the county executive and the County Council,” rushed through at an emergency 10 a.m. meeting on the last day possible to get it on the Aug. 7 ballot. “And in that hurry, it is my belief that numerous errors were made in the ordinances.”
The judge seemed to favor a post-election remedy, but Watson said the problems were too extensive to be properly remedied after voters weigh in at the polls.
The finance amendment contains three distinct issues, a process he called “logrolling,” instead of outlining them in separate amendments,
“If I like that campaign-finance limit, I’m going to have to also approve this massive change to how the St. Louis County budget process works,” Watson said.
But through his attorney Flynn, Burton said that he thinks voters will be able to understand.
“My client feels that it’s not confusing,” Flynn said of the ballot language.
Wood kicked off the hearing by allowing the council members and Burton to intervene in the case, over the objections of County Counselor Peter Krane, who sat at the plaintiff’s table alongside Garrett.
After Wood ruled, Assistant County Counselor Linda Levin argued that if the council was involved it should be represented by the county counselor’s office, which is the county’s only legally allowed representative under the county Charter. But Wood said he allowed the four council members present in court — 6th District Councilman Ernie Trakas, R-Oakville, council Chairman Sam Page, D-Creve Coeur, 1st District Councilwoman Hazel Erby, D-University City, and 7th District Councilman Mark Harder, R-Ballwin — to intervene as individuals, not as an institution, so they could be represented by a private attorney.
During the four council members’ testimony, they answered brief questioning about how they voted on the legislation.
Kistner argued that he represented “six members of the County Council” who would “suffer institutional injury” if they were not allowed to intervene. Because St. Louis County was not an official party to the case and the election board had no opinion, in the council’s absence no one was arguing in favor of the Charter amendments, Kistner noted.
“We believe that it’s critically important in this rushed case that somebody get involved to actually say these laws are valid and take a position,” he said.
The conflict in the courtroom touched on one of the key issues that the council hopes the Charter amendments will fix. Kistner’s firm Bick & Kistner is representing the council in a lawsuit against Stenger and would presumably represent the legislators on other issues if the Charter amendment is approved by voters. But the firm has not submitted a bill to the council for its services, Trakas said: “I haven’t seen a bill.”
Burton said his attorney is also working pro bono. He sat next to the council in court.
“This came about by me going to 19 County Council meetings,” he said. “I’ve been making calls and digging deep for everything. I want these on the ballot.”