TONY MESSENGER: Will 'case of the lone voter' get its day in court? Missouri law professors hope so.

Saturday , January 13, 2018 - 2:56 PM

By Tony Messenger St. Louis Post-Dispatch

A little more than two years ago, Jen Henderson was briefly the most famous voter in America.

The 23-year-old MU student was the only voter in a proposed commercial improvement district in the Business Loop area of Columbia. When she told the organizers of the district that she intended to vote no on their proposed sales tax, the business owners delayed the election.

The story gained national attention, from Los Angeles to New York, as an example of gerrymandering gone bad. The business owners who drew the boundaries for the commercial district peppered with car dealerships, restaurants and hotels didn’t want it to contain any voters. That way they could vote on their own to impose a sales tax on shoppers to help finance their developments.

Henderson was the fly in their ointment.

Eventually, the organizers of the commercial improvement district identified more voters. They scheduled a hasty election, offering only 10 days’ notice. The vote passed and the sales tax was imposed.

“This is the craziest case you’ve ever heard of,” said MU School of Law professor Richard Reuben, who represents Henderson.

On Dec. 29, Reuben and St. Louis attorney James Layton — the former solicitor general for the state — filed a writ of mandamus with the Missouri Supreme Court asking the court to force Judge Jodie Asel of the Boone County Circuit Court to issue a judgment in their lawsuit against the election.

The problem isn’t that Asel ruled against Henderson.

It’s that she won’t rule at all.

A year ago, Henderson sued to overturn the election that created the new sales tax, alleging multiple violations of election law. The community improvement district sought to dismiss the lawsuit, arguing that Asel didn’t have jurisdiction over community improvement districts. Asel agreed and dismissed the case “without prejudice.”

That’s a legal term of art that in most cases works in the favor of the plaintiff, Reuben says. Such a procedure allows the refiling of the case using an alternative legal theory or argument. But in this case, Reuben says, there is no alternative.

Seeking to invalidate the election is the only path forward. He appealed Asel’s decision, but was denied because the judge didn’t issue a final judgment.

It created a legal limbo that protects the business district and offers no legal remedy for appeal.

“What she has really done is bury the case,” Reuben says. “I asked her to enter judgment against us so we could appeal. She refused.”

The case could have significant legal consequences throughout Missouri, Reuben says.

If it stands that the circuit court doesn’t have jurisdiction over community improvement districts, then hundreds of such districts across the state have no legal accountability over the elections that allow them to bring in hundreds of millions of dollars from taxpayers.

But it also raises an issue as to whether some judges in the state are using the “dismissed without prejudice” procedure as a way to avoid being overturned by higher courts. That’s why law professors and former deans from all four of Missouri’s law schools have signed on to an amicus brief to support the case brought by Reuben and Layton.

“In this case … as well as others of which we are aware, some trial judges have begun to use the dismissal without prejudice to insulate their decisions from appeal,” the law professors wrote. “Rather than shielding the plaintiff from inefficiency, the trial judge here used the device as a sword to deprive the plaintiff of her statutory right to appeal the trial court’s adverse ruling against her. This undermines the rule of law and public confidence in the courts ... .”

Such an outcome “certainly doesn’t feel like democracy,” said former Missouri Supreme Court Judge Mike Wolff. Wolff, the dean emeritus of St. Louis University School of Law, submitted the brief along with Jeffrey Berman, an emeritus dean at the University of Missouri, Kansas City School of Law; R. Lawrence Dessem, the dean emeritus of the MU School of Law; and Pauline Kim, a professor at Washington University School of Law.

“One way or another, you’re entitled to a judgment,” Wolff said.

For two years, the sales tax created despite Henderson’s no vote has been collecting money for the developers of the community improvement district around her home. All she wants, her attorney says, is her day in court.

“This is about making the courts operate the way they’re supposed to operate,” Reuben says. “We need our American institutions to work. This is not how the judicial system is supposed to work.”

{p class=”p1”}This column first published in the St. Louis Post-Dispatch and on, Jan. 7, 2018.

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