Lembke weighs legal challenge to trash plan

Earls disagrees trash plan violates state Constitution

Bill Milligan photo

Bill Milligan photo

By BURKE WASSON

As county officials hone plans to form trash districts next year in unincorporated areas, Rep. Jim Lembke, R-Lemay, is considering legal action to stop them.

Lembke said he expects to meet this week with legal counsel to discuss options to stop the county’s trash-district plans.

He is concerned that the plan could violate the Missouri Constitution because it stipulates that the County Council awards trash contracts for residents in unincorporated areas and removes that right to choose a trash hauler from those residents.

Lembke cites Article 1, Section 13 of the Missouri Constitution, which states, “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”

“It clearly states that a law cannot be passed that impedes the ability or obligation of entering into contract,” Lembke said. “You’re keeping a taxpayer and an individual from entering into a contract for services. By doing so, the government is doing it in your place. And the way I read that, it’s unconstitutional. So even if there are other examples of that happening across the state, that doesn’t mean that it’s constitutional. It means nobody’s challenged it.”

But County Chief Operating Officer Garry Earls believes that if more than 75 municipalities in the county can award bids for trash service for all their residents, nothing in the state Constitution would stop the county from doing the same in unincorporated areas.

“Certainly, we understand the use of the word ‘constitutional’ in the state Constitution is sometimes quite loosely thrown around,” Earls said. “But obviously, if there were some uncertainty about this being constitutional or not, we wouldn’t be in this process. In fact, we would have already heard about that because the 75 municipalities that have contracted over the past 10 years to do this service would certainly have raised the issue already.”

County officials have said reasons for the implementation of districts include ensuring a uniform price range, setting a standard service range, the need for more recycling and a desire to improve appearance and reduce wear and tear on county roads by lowering the number of trash trucks driving through the county at one time.

Further recommendations include advertising for two trash-district contracts by February 2008, awarding contracts for those two districts by May 2008, advertising four more district contracts by August 2008, awarding contracts to those four districts by October 2008, advertising for all remaining districts by November 2008 and awarding contracts to all districts by January 2009.

While only subdivisions can opt out of the trash districts in unincorporated areas and choose their own trash haulers, Lembke told a collection of county officials at a Sept. 24 public forum at Affton High School that denying all residents of that right could violate the state Constitution.

“It seems to me that at the meetings that I’ve been able to attend on this issue that an overwhelming amount of people that come to these meetings are not in favor of this program,” Lembke said at the forum. “And also, from the feedback that I’ve received from my constituents in the 85th District, that seems to be the case.

“Now I guess my question to the County Council and also to the county’s attorneys are I think that we have a real constitutional problem with this issue. And I would direct those attorneys to the Missouri Constitution to Article 1, Section 13 that says a law cannot be passed that would impair a citizen’s right to be able to enter into a contract, a private contract … And I think that we the people should certainly direct to our elected officials in the county that that is a serious concern of ours and something that needs to be addressed.”

Earls said he has heard similar rationale opposing other county decisions over the years and believes that Lembke has yet to “frame an argument” on why he believes the trash districts are unconstitutional.

“In county government, we have a wide range of experiences in this in rolling out new services,” Earls said. “And I’m relatively accustomed to hearing the hyperbole that goes along with folks that oppose what we’re doing. I’m sure you could frame an argument. Although, Rep. Lembke didn’t really frame an argument there (at the forum). He just declared that he had a question on the constitutionality and then ran off. He didn’t state why he thought it was unconstitutional.”

Lembke said last week that he feels an obligation to oppose the trash-district plan, especially because he has seen and heard from many residents in his Congressional district that they are opposed to the plan.

He also said he supports the efforts of 6th District County Councilman John Campisi, R-south county, in educating residents to the trash-district proposal.

While Campisi joined the rest of the County Council in December 2006 by voting in favor of that plan, he has since said former 3rd District County Councilman Skip Mange, R-Town and Country, misled him. Campisi believed that he was voting in favor of designating two day per week to pick up trash and not in favor of awarding trash districts to haulers.

“As an elected official, when you have that kind of turnout — over 400 people — that are expressing their disapproval of something that their elected representatives have passed, that’s something … you’ve got to wake up,” Lembke said. “You’ve got to respond to that. And I think that John Campisi’s done that, but he’s out there on an island. And I’m going to help any way I can to make sure that people’s will is done here.”

Earls believes the will of the overall residents of St. Louis County is being accomplished through the trash-district plans, which he hopes will result in 50 percent to 75 percent of all homes recycling and a “reasonable price” of $11 to $18 per month for all services.

“Picking up the trash is just another one of those things that we’ve determined as a society over time that it’s really better to do this as a coalition of the willing here rather than try to do it all individually,” Earls said. “But St. Louis County has been remiss over the past several years. We haven’t stepped forward. We haven’t put up with the kind of slings and arrows that you heard the other night and gotten on with providing that service to the bulk of our citizens who really just want their communities to be clean and safe and provide them with a great quality of life at a reasonable price. They’re looking for a reasonable price to do it.”

However, Lembke said that based upon his talks with residents and his own views of the state Constitution, he will study op-tions to seek an injunction against the trash-district plan.

“I’ve already got the feel that they would like to (legally challenge the proposal),” Lembke said. “I just want to see, because I’m not an attorney, what our options are about filing a suit and seeing if we can get an injunction against this thing. Again, I don’t really know all the legals ins and outs. But I’m going to find out.”