Judge Dismisses Suit Against Franklin County; Plaintiffs to Appeal - The Missourian: Politics

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Judge Dismisses Suit Against Franklin County; Plaintiffs to Appeal

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Posted: Tuesday, June 26, 2012 3:25 pm | Updated: 3:11 pm, Thu Oct 24, 2013.

A judge has dismissed a lawsuit that sought to block Franklin County from refinancing tens of millions of dollars in leasehold bonds.

Associate Circuit Court Judge John B. Berkemeyer ruled Friday the plaintiffs in the case failed to allege sufficient allegations to sustain a permanent injunction.

Three Franklin County residents, including Ron Keeven, a candidate for county commissioner, filed the legal action in early May after the commission passed an order authorizing the county to pursue replacing its existing certificates of participation (COPs) with new leasehold bonds at a lower interest rate.

The plaintiffs in the case are regular critics of the county commission and have been vocal in their opposition to the COPs and their use in the county’s building and road paving programs over the past several years.

The order at issue in the case authorizes Presiding Commissioner John Griesheimer to sign certain documents related to the refinancing process.

Plaintiff Art LeBeau said previously that the suit was not related to the refinancing.

The lawsuit contended that commissioners have no power to designate the presiding commissioner specifically with the ability to sign documents on behalf of the entire commission on his own.

At the beginning of June, commissioners decided to postpone refinancing until the lawsuit had been resolved.

Officials Pleased

Franklin County Counselor Mark Vincent said Monday that the ruling allows the county to move forward in its effort to save the citizens of Franklin County millions of dollars by refinancing the COPs.

“I am definitely encouraged by Judge Berkemeyer’s prompt ruling in this matter,” Vincent said. “By dismissing the suit in its entirety the court recognized that there is no basis in law or fact for the claims advanced by Mr. LeBeau, Mr. (Eric) Reichert and Mr. Keeven. It also confirms that Franklin County and most other political entities, have acted properly with regard to how business is conducted.”

The plaintiffs disagreed.

Reichert noted that Judge Berkemeyer’s dismissal did not call the lawsuit frivolous, vindictive in nature or politically motivated.

Vincent made such claims in his motion to dismiss, which the judge granted.

“Factually, the judge ruled, very subjectively, that the plaintiffs ‘fail to allege sufficient allegations to sustain any cause of action for a permanent injunction,’ ” Reichert said.

Reichert said the men had previously sought a temporary injunction and questioned Berkemeyer’s definition of sufficient.

“How many allegations must be alleged in a simple injunctive lawsuit to allow it to proceed? Would every judge in Franklin County who recused himself define sufficient the same?” he asked.

“Since reason and court rules would conclude that the judge has to allow the plaintiffs time to submit more allegations and other paperwork, more documentation of potential extra-legal ceding of power will be submitted, along with other documents allowed by the rules,” Reichert said.

By law, the three men have 10 days to file an appeal to Judge Berkemeyer’s ruling.

Take Issue With Ruling

LeBeau said he, Reichert and Keeven weren’t given sufficient time to reply to Vincent’s motion to dismiss.

That motion was dated June 14. LeBeau said he received a copy of the motion June 18.

Berkemeyer dismissed the case June 20. His dismissal was filed June 22.

At the hearing, LeBeau told Judge Berkemeyer he couldn’t find a statute or law giving commissioners the power to cede their authority, but Judge Berkemeyer said the plaintiffs — not the commission — had the burden of providing case law contrary to the commission’s practice.

LeBeau Tuesday said it is possible no such case law exists because the practice has never been challenged in court.

He said he planned to submit a memorandum of understanding which contested several of the points noted by Vincent in his filings, including contesting the counselor’s claim that the commission didn’t delegate any legislative power.

Vincent said at a hearing last week that refinancing could save the county roughly $4 million. Griesheimer cited a $4.5 million figure earlier in June.

Vincent Tuesday said the county is “now free to move forward on the COPs.”

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