Obiter dictum and Disingenuousness

ob·i·ter dic·tum

ōbidər ˈdiktəm/

noun: obiter dictum; plural noun: obiter dicta

1. a judge's incidental expression of opinion, not essential to the decision and not establishing precedent.

   • an incidental remark.

Judge Dierker's Obiter Dictum

In 2001, Judge Robert Dierker of Missouri's 22nd Circuit ruled invalid an ordinance requiring the City of St. Louis to contract only with entities that pay a living wage. Judge Dierker ruled that the City ordinance in question was void due to the City ordinance's vagueness and due to several technical (though fixable) defects. One Missouri statute that the ordinance did not contravene, according to Judge Dierker, was the Missouri statute (RSMO 67.1571) enacted in 1998 prohibiting local minimum wage increases more than the state minimum wage:

"To the extent that [the living wage ordinance] applies to contractors and direct recipients of City financial assistance, there surely is no conflict between the ordinance and the state minimum wage statute. [The City of St. Louis] indubitably has the authority to regulate the terms of its contracts."

Though Judge Dierker himself saw no conflict between Missouri's local minimum wage prohibition statute and the City's living wage ordinance, Dierker nevertheless decided to engage in a bit of obiter dictum regarding the Missouri statute. Dierker found that the statute was unconstitutional because it violated the Missouri Constitution's "single-subject" provisions (Article III, sections 21 & 23). The statute enacted in 1998 prohibiting local minimum wage increases was part of a bill in the Missouri Legislature that enacted several statutes providing for state "community improvement districts." In Dierker's opinion, this rendered the state minimum wage statute unconstitutional because locally-mandated minimum wages and state community improvement districts are not the same subject.

The plaintiffs in the case, a collection of business associations, appealed to the Missouri Supreme Court. The plaintiffs appealed on two very narrow questions: 1. whether the question of the constitutionality of the minimum wage statute had been properly raised, and 2. whether the state minimum wage statute itself did not violate the "single subject" rule and therefore was constitutional.

The City of St. Louis asked the Missouri Supreme Court to dismiss the appeal. The City's reasoning was that it did not matter to the case at hand whether the state minimum wage statute was unconstitutional; the City's living wage ordinance was voided by Dierker due to its vagueness and due to its technical defects:

"While recognizing that the St. Louis Living Wage Ordinance was enjoined, Appellant seeks to establish that Section 67.1571 is constitutional and bars future living wage ordinances that are not before this Court, and are not the subject of this litigation. [...]  Respondents moved to dismiss the appeal on the grounds that Appellant is not aggrieved by the circuit court’s decision and therefore lacks standing to appeal, and that this Court accordingly lacks jurisdiction over the appeal because no actual controversy is before it. That motion was taken with the case. We respectfully refer the Court to our briefs of that motion."

In 2002, the Missouri Supreme Court did just what the City asked it do and did it based on the City's reasoning:

"[The] ruling by the Missouri Supreme Court dismissed [the] appeal. Noting that the lower court had struck down the original ordinance, the Court concluded that it lacked jurisdiction in the case."

The Missouri Supreme Court, at the urging of the City of St. Louis, took as obiter dictum a 22nd Circuit Court judge's finding that the state minimum wage statute was unconstitutional. Dierker's finding as such was not essential to his decision in the living wage ordinance case and did not establish precedent.

The City Counselor of St. Louis' Minimum Wage Ordinance Case

Fast-forward 13 years to 2015. At the urging of the Mayor of the City of St. Louis, the City's Board of Aldermen has passed (and the Mayor has signed) a local minimum wage ordinance mandating a gradual increase of the minimum wage to $11 by 2018.

In June, while the City and its Board of Aldermen were hotly debating both the legality and the merits of raising the minimum wage, local media raised the subject of the Missouri statute prohibiting local minimum wage increases. St. Louis City Counselor Winston Calvert was quick to reply:

@MODavidMJackson @550KTRS @McGrawMilhaven @kells_jackson @MayorSlay that statute was declared unconstitutional by a court in 2001

— Winston Calvert (@wcalvert) June 4, 2015

Now litigation has commenced over the City's minimum wage ordinance. In a memorandum to the court defending the City's minimum wage ordinance, Calvert cited Judge Dierker's obiter dictum as rendering unconstitutional Missouri's local minimum wage prohibition statute:

"There is no enforceable state statute that expressly preempts the ordinance. Plaintiffs incorrectly contend that § 67.1571, RSMo., preempts the ordinance. That statute provides that "[n]o municipality . . . shall establish, mandate or otherwise require a minimum wage that exceeds the state minimum wage.” § 67.1571, RSMo. On its face, this statute seems to preempt the City’s ordinance. However, § 67.1571 is unconstitutional. See Missouri Hotel and Motel Associationn v. City of St. Louis, Case No. 004-02638 (Mo. 22nd Jud. Cir. Ct. July 31, 2001)"

The City Counselor's case for the legality of the City of St. Louis' minimum wage ordinance rests upon a state circuit court judge's obiter dictum from 14 years ago. But how ever persuasive the circuit court judge's pronouncement on the constitutionality of the state statute, it is not precedent.

Furthermore, it is now too late to raise the issue of whether Missouri's local minimum wage prohibition statute, enacted in 1998, is unconstitutional for violating the "single-subject" rule:

"516.500. No action alleging a procedural defect in the enactment of a bill into law shall be commenced, had or maintained by any party later than the adjournment of the next full regular legislative session following the effective date of the bill as law, unless it can be shown that there was no party aggrieved who could have raised the claim within that time. In the latter circumstance, the complaining party must establish that he or she was the first person aggrieved or in the class of first persons aggrieved, and that the claim was raised not later than the adjournment of the next full regular legislative session following any person being aggrieved. In no event shall an action alleging a procedural defect in the enactment of a bill into law be allowed later than five years after the bill or the pertinent section of the bill which is challenged becomes effective." 

I find it difficult to believe that the Mayor and his City Counselor, both of whom are attorneys, were ignorant of the facts that Dierker's 2001 pronouncement is not precedent, and that it is too late to challenge Missouri's local minimum wage prohibition statute as unconstitutionally violative of the "single subject" rule. I find it much easier to believe that, like so many other things as of late, Room 200's "fight" for a local minimum wage is heavy on the show and light on the substance. A fancy word for that kind of thing could be disingenuous.

I hope a jury of city residents decides the fate of the city's minimum wage. #fgs

— MayorSlay.com (@MayorSlay) September 17, 2015

Last Year, A Thin 5 "Points" From Civilian Review

On September 15th of last year, Alderman Ogilvie, Alderwoman Ingrassia and Alderman Cohn were 5 "points" away from sponsoring and introducing legislation in the City of St. Louis Board of Aldermen establishing an independent civilian review board for the St. Louis Metropolitan Police Department. This was the day of Potluck PAC #1, a policy "crowdsourcing" event funded in large part with funds from Alderman Ogilvie's campaign committee. (Some three days later, Ogilvie would host an official reelection campaign fundraiser, recouping the $1,100 his campaign committee spent on Potluck PAC #1 plus $1,184.)

Anyway, back to the 5 "points." Potluck PAC #1's ballot was weighted. There were four policy proposals on which to vote, while the ballot allowed for the voter to rank three policy proposals. 1st preference = 5 "points" for the proposal. 2nd preference = 3 "points" for the proposal. 3rd preference = 1 "point" for the proposal. When Potluck PAC announced the winning proposal the day following the vote, Potluck PAC said only that the vote was "very close." After polite requests from both me and another presenter, Potluck PAC provided the "point" totals for each proposal:

1. Citizen Police Review Board — 30.8% (178 out of 577 total points)
2. Land Asset Cooperative — 31.7% (183 out of 577 total points)
3. Reauthorization of Street Closures — 25.8% (149 out of 577 total points)
4. Prohibition of Tenant Application Fees — 11.6% (67 out of 577 total points)

Following Potluck PAC's publishing of these point totals, I asked both publicly and privately of Potluck PAC to provide the data as to the number of first place, second place and third place votes for each proposal. Despite private assurances from Potluck PAC that such data would be made available in due time, nearly a year has gone by without Potluck PAC making such data available. Making available such data, the number of place votes for each proposal, would present a more clear picture of preferences and priorities of the Potluck PAC #1 "electorate." Moreover, I can think of no more practical audit of the vote than to compile and provide such data.

At any rate, the Potluck PAC #1 vote appears to have been a close one. Independent civilian review board legislation was reported by Potluck PAC as being but 5 "points" from sponsorship and introduction in the Board of Aldermen by Alderman Ogilvie, Alderwoman Ingrassia and Alderman Cohn. Given the recent police shooting deaths of Michael Brown and Kajieme Powell, I believe it safe to assume that, were the Potluck PAC #1 vote held this year in September, independent civilian review legislation would have more than closed such a thin 5 "point" gap.

As introduction of independent civilian review board legislation in the Board of Aldermen draws near, one question is whether Alderman Ogilvie, Alderwoman Ingrassia and Alderman Cohn each will sign on to such legislation as sponsor or co-sponsor. Last year, each was 5 "points" from doing just that. Last year, Michael Brown and Kajieme Powell had yet to be shot dead in the street by police officers.

Avoiding Another Veto of Civilian Review

It would appear that the City of St. Louis Board of Aldermen will soon entertain legislation that would establish a civilian review board for the City's police department.

In 2006, City of St. Louis Mayor Francis Slay vetoed aldermanic Board Bill 69, which would have established a civilian review board for the St. Louis Metropolitan Police Department (SLMPD). The legal reasons for Mayor Slay's veto of the civilian review board bill, well-supported by law as discussed in a City Counselor's Office legal memorandum, were threefold:

1. A civilian review board for SLMPD in and of itself would contravene Missouri statutory law. At the time of Slay's veto, SLMPD was, by state statutory law, under the exclusive control of the State of Missouri. 
2. The procedures of civilian review of SLMPD as set forth in Board Bill 69 would violate officers' US and MO Constitutional rights as set forth in the Garrity line of case law.
3. The procedures of civilian review of SLMPD as set forth in Board Bill 69 would contravene certain legal duties of confidentiality borne by SLMPD, particularly those duties to maintain the confidentiality of materials of or related to SLMPD investigations.

Reason number 1 for Slay's 2006 veto, that a civilian review board for SLMPD in and of itself would contravene Missouri law, cannot be a reason for veto now. SLMPD is no longer under the exclusive control of the State of Missouri. Now, SLMPD is under the "local control" of the City of St. Louis. Currently, this "local control" is vested exclusively in the Mayor's Office.

Reason number 2 for Slay's2006 veto, that the procedures of civilian review as set forth in Board Bill 69 would violate officers' Constitutional rights, can still be a valid reason for a veto. On this point, the Mayor will likely again rely on a legal memorandum by the City Counselor's Office with regard to the decision of whether to veto civilian review board legislation.

Reason number 3 for Slay's 2006 veto, that the procedures of civilian review as set forth in Board Bill 69 would contravene SLMPD's certain duties of confidentiality, can still be a valid reason for a veto. On this point, the Mayor will likely again rely on a legal memorandum by the City Counselor's Office with regard to the decision of whether to veto civilian review board legislation.

In conclusion, I don't predict that Mayor Slay signs a civilian review bill without a City Counselor's Office legal memorandum attesting to the bill's legality. If the City Counselor's Office now is not part of the new legislation's crafting, then the City Counselor's Office soon ought be given its part.

Messages

Here's how the St. Louis American characterized the City License Collector's race in its endorsement of Mavis Thompson: "We believe Slay [who endorsed Boyd and whose operation directed financial and logistical support to Jeffrey Boyd's candidacy] ultimately is trying to send a message, in this largely insignificant race, that he is the sole king-maker in the city and can do as he pleases, regardless of what anyone – and especially the city’s black community – thinks about it."

The Boyd campaign for License Collector came up short by a little more than 400 votes. Boyd carried his home ward, the North Side's 22nd, but failed to carry any other North Side ward. In most other North Side wards, Thompson ran up large margins over Boyd. While 9 North Side wards delivered Thompson at least +200 margins, Boyd enjoyed only 5 such wards delivering to him +200 margins ... and all 5 such wards were South Side wards.

Thompson and Boyd ran basically evenly in the Central Corridor's 28th and 7th wards and in the South Side's majority-black 20th. In the Central Corridor's 17th, Thompson won by 83 votes. In the Central Corridor/Near South Side's 6th (much of which is Lewis Reed's home turf), Thompson crushed Boyd by 266 votes.

While after-primary campaign spending reports won't be available until next week, it looks to be that the Boyd campaign outspent the Thompson campaign by a more than 2-1 ratio. It would appear, however, that each Boyd campaign dollar spent yielded an increasingly-diminishing return.

Perhaps the American is largely correct that the License Collector's race is "largely insignificant." There is, however, significance to the numbers that the License Collector's race yielded. A likely-contested President of the Board of Aldermen race approaches. Consider this License Collector's race a rehearsal of sorts. Consider it a message.     

City of St. Louis License Collector (Dem) citywide result:

Mavis Thompson: 14,167
Jeffrey Boyd: 13,756

Mavis Thompson: +411

Mavis Thompson margin of vote vs. Jeffrey Boyd, by ward:

21: +422
01: +380
18: +373
27: +354
26: +317
04: +314
06: +266
19: +250
02: +243
05: +105
03: +100
17: +083
07: -002
20: -018
28: -027
09: -067
25: -073
08: -075
11: -109
14: -123
10: -127
15: -140
22: -172
24: -251
13: -275
12: -313
23: -457
16: -567

Let's GO to the Tape.

It's no "Rose Mary Stretch," but the City's Board of Estimate & Apportionment's providing the wrong audio of its 05/20/14 meeting does raise an eyebrow. Instead of providing audio of its May 2014 meeting, E&A provided audio for a most perfunctory E&A meeting in May of 2013. Have a listen and hear for yourself.

Could be an understandable clerical error of mixing up 2013 and 2014, right? Could be. But here's the eyebrow-raiser. Aldermanic President Lewis Reed claims that at this particular May 20, 2014 meeting of E&A (of which an audio record has not been provided), both Mayor Slay and Comptroller Green urged that $29 million in a proposed bond go for infrastructure in Paul McKee's Northside Regeneration TIF zone. On June 23 Reed, citing this 05/20/14 E&A meeting (of which an audio record has not been provided), warned of a possible "sweetheart deal" for Paul McKee.

On June 26, Reed presented a GO bond proposal to the Board of Aldermen's Ways & Means Committee with specific project lists. Reed's proposal separated a controversial police 'real time intelligence center" ballot question from the larger bond, so that voters had the opportunity to support or reject RTIC separately from supporting or rejecting the rest of the bond issue.

Reed's substitute bill presented to Ways & Means on July 2 eliminated money for a home repair program and, perhaps most importantly for a possible "sweetheart deal," eliminated the specificity of the project list.

Mayor Francis Slay wasn't a fan of the level of detail outlined in the bill, saying the city needed flexibility to address changing capital needs. And comptroller Darlene Green didn't like the home repair money because it would cost the city more to sell those bonds.
Eventually, Reed reached a compromise with Slay and Green that kept the real-time intelligence center separate, but eliminated home repair funds and the specific list of projects.

The compromise, however, broke down as "Reed would be one of six aldermen to vote to restore $5 million in home repair, plus make other changes."

With the deal now kaput between Reed on one side and, on the other side, Mayor Slay and Comptroller Green, it's a question of to what extent Slay and Green will involve themselves in what (if any) bond bill gets out of BoA. It already appears likely that the home repair program funds won't survive, but what else could get axed or eliminated? The Capital Committee recommended a bond issue of $155 million total for "critical" departmental requests and set a ceiling of no more than $175 million total. Will a number around $175 million be what gets out of BoA?

How about $180 million? That's the $155 million identified by the Capital Committee as critical, plus $25 million for unspecified (or, if you will, flexible) infrastructure improvements. Keep in mind the proposed funds for things like building demolition that will "incidentally" touch upon McKee's Northside Regeneration, and it's not difficult to see how a $25 million pot for unspecified infrastructure spending gets us to a figure of $29 million for Northside Regeneration.

Perhaps the audio of that 05/20/14 E&A meeting can shed some light. Voters won't have a specific project list to illuminate the issue. Let's GO to the tape. (Get it? GO. Like a GO bond.)

MO Transpo Tax Part 3: What's Its Chance?

Part 3 of 3; part 2 is here; part 1 is here.

Yesterday, the pro-Amendment 7 campaign committee, Missourians for Safe Transportation and New Jobs, received donations totaling $97,500. That's yesterday alone. Since the committee's inception, it's raised $586,022. According to Scott Cannon of the Kansas City Star, financial support of the pro-Amendment 7 effort is expected to total "upward of $5 million."

Meanwhile, the anti-Amendment 7 campaign committee, Missourians for Better Transportation Solutions, "likely will rely on social media and public events."

The pro-Amendment 7 committee has Normington & Petts, a DC-based polling and strategy firm with a load of experience winning tough races. It also has valuable experience in statewide Missouri campaigns, as it polled and consulted for Jay Nixon's victorious 2008 campaign for governor.

That's not to say that the dramatic resource disparity of the pro- and anti-7 campaigns automatically makes passage a slam dunk. Conventional Missouri political wisdom holds that Missouri's August primary electorate has a generally anti-tax disposition. Nevertheless, the dramatic resource disparity very well could "level the playing field," if not tilt the playing field in the pro-7 forces' favor.

And a "level playing field" very well could be sufficient to pass Amendment 7. The pro-7 forces need for success but a bare majority: 50% of Missouri's August 5th voters plus one.

And that's the St. Louis regional transportation policy dice-roll. St. Louis' multi-modal transportation advocates have decided to put their public organization efforts seemingly entirely into defeating Amendment 7 on August 5th rather than recently-and-now organizing public pressure on the County Executive's Office for a more multi-modal County project list. St. Louis' multi-modal transportation advocates should hope that they've correctly assessed the potential outcomes and have strategized accordingly. The stakes in this dice-roll are the next ten years (at least) of St. Louis regional transportation policy.

MO Transpo Tax Part 2: Sales Tax in the City (and County)

Part 2 of 3; Part 1 is here.

While a sales tax may be less regressive than a fuel tax in rural Missouri, a sales tax is still regressive in rural Missouri. In urban and inner-ring suburban St. Louis, the opposite relationship tends to occur. A sales tax is more regressive than a fuel tax in urban/inner-ring suburban St. Louis (though a fuel tax would be regressive, too).

For Missouri communities more urban in character, state sales tax revenue can do things that fuel tax revenue cannot. Missouri gasoline/diesel taxes can only be used for roads, per Article IV Section 30(a) of the Missouri Constitution. Missouri sales tax revenue isn't limited as such, and can be used for any kind of transportation infrastructure such as mass transit, bicycle, pedestrian, river, air, etc. In the Mayor's words, state sales tax revenue provides for flexibility:


Room 200's list of projects submitted to MoDOT takes large advantage of the flexibility afforded by sales tax revenue as opposed to gasoline/diesel tax revenue. Only 25% of the City's "90%" category allotment of revenue ($255 million) would go to road and bridge projects. The other 75% (of $255 million) would go to Complete Streets projects, transit projects, bicyle/pedestrian path projects, airport projects, river port projects and a law enforcement "total transportation center." The City of St. Louis is further projected to receive an additional $2.5 million per year in discretionary, flexible transportation funds. 

In St. Louis County, it's a different story.

After a issuing a statement that the Missouri transportation sales tax issue is "not a top priority" for his administration, the County Executive (at least figuratively) mailed it in to MoDOT. Alex Ihnen's nextSTL piece estimates that approximately 98% of the County's "90%" category allotment of revenue ($841 million) would go to road and bridge projects. It's almost as if the County's "90%" category allotment might as well be gasoline/diesel tax revenue.

Obscured in the story so far has been the fact that these "90%" category county project lists are not final until approved by the Missouri Highways and Transportation Commission upon presentation by MoDOT's district heads. There was and is still both time and opportunity for a more multi-modal set of projects for St. Louis County.
 
It appears to me here that City Aldermanic President Reed refers to the County Executive Office's current ability to revise and/or amend the County project list:   

@mattfredstl @dbeganovic timeline seems too short for any major changes to the project lists. Tho, fingers crossed @SaintLouCo will amend.
— Lewis E. Reed (@PresReed) June 6, 2014

It's anyone's guess as to what, if any, revisions or amendments the County Executive's Office will make to the County list. What's apparent is the lack of an effort to organize public pressure on the County Executive's Office to take a more multi-modal transportation approach that would be in line with the Mayor's Office's approach.

Instead, efforts at organizing the public for "better transportation solutions" are going toward a campaign to mobilize votes against the state-wide measure, 56 days from now, on August 5th.