Decision on whether to appeal ruling on Prop 1, Prop 2 to be made this week

Concord resident Dennis Skelton has yet to decide whether to appeal a judge’s decision allowing two Mehlville Fire Protection District tax-rate-decrease measures to remain on the April 7 ballot, according to his attorney.

Attorney John Goffstein, who represented Skelton, told the Call last week that an appeal would be “up to my client” and if an appeal were filed, it would be this week.

Skelton filed his lawsuit Jan. 28 — less than a week after the Board of Directors voted unanimously Jan. 23 to place Proposition 1 and Proposition 2 on the April 7 ballot.

Voter approval of both propositions would save taxpayers nearly $10.5 million per year, according to Board of Directors Chairman Aaron Hilmer.

Skelton was an unsuccessful write-in candidate for the fire district’s Board of Directors in April 2007. He also was founder of the now-defunct Protecting Our Protectors, or POP, “a concerned group of citizens who support the firefighters and paramedics of the Mehlville Fire Protection District.”

A lawsuit filed Feb. 7, 2007, by Skelton led to the removal of the district’s Proposition TD, or Tax Decrease, from the April 3, 2007, ballot. Prop TD sought to decrease the district’s general tax levy by 45 cents per $100 of assessed value. In a ruling issued Feb. 8, 2007, Circuit Court Judge James R. Hartenbach ordered the county Board of Election Commissioners to remove Proposition TD from the ballot.

But St. Louis County Circuit Judge Sandra Hemphill ruled against Skelton in his legal challenge to remove Prop 1 and Prop 2 from the April ballot. In her ruling, Hemphill cited the passage of a new state statute last year by the Missouri Legislature that permits political subdivisions to place tax-rate-decrease measures before voters.

If an appeal were filed, Goffstein said, “This is de novo review. The judge will just look at the ballot and they’ll say two things — they either have the authority or they don’t have the authority to put it on the ballot. In other words, they’ll either agree with the Hartenbach ruling or the Hemphill ruling. And then more important, they’ll look at the ballot and say: ‘What?'”

He also said, “That’s a good time to go to the appellate court when you have contradictory rulings. That’s what they’re for.”

Hemphill ruled against Goffstein’s contentions that the Board of Directors had no authority to place the tax-rate-decrease propositions before voters and that the ballot language was “unconstitutionally vague.”

“I think she’s wrong,” he said. “But I think she did a good job understanding the facts. And I think she was a good judge and courteous to all the parties and listened to all the arguments … I think she did a good job in that she got the issues that are crystal clear for appeal. It’s just reasonable people differ. I have no adverse comments to say about Judge Hemphill whatsoever …

“I think that the other ruling was the correct one,” he said. “And I just can’t fathom the ballot issue being anything but unclear. And that’s when issues get voided. I think it’s impermissibly vague. It says it’s not going to do something that it’s really doing.”

Goffstein said that the April 7 vote could take place, but could be overturned with a successful appeal.

“The vote could take place,” he said. “It could go one way or the other. Then the appellate court could come in and say: ‘No, it was not made clear to the voters what they were voting on.’ That’s why we went with it this way. It was to try to save that time and expense for everybody to go to a vote only to have it set aside later. So, we’ve done all we can in that respect. But they get set aside all the time after a vote.”