IN THE 21ST CIRCUIT COURT OF THE COUNTY OF ST LOUIS

STATE OF MISSOURI
State of Missouri, ex rel.
Michael Moore
Plaintiff

v.

Kirkwood City Mayor

Defendant
Art McDonnell

and

Kirkwood City Council Cause No.

Defendants
Timothy E. Griffin
Joseph E. Godi
Paul W. Ward Division
Iggy Yuan
Gerry Biedenstein
Gina Jaksetic

and

The City Team of Kirkwood

Defendants

Arthur J. McDonnell
Iggy Yuan
Michael G. Brown
Georgia Ragland
Jack Plummer

and

The Community Team of Kirkwood

Defendants
David Bennett
Lois Bliss
Vernon Gundermann
Ronald Hodges
Charles Howard
Cynthia Isaac
 PETITION FOR
DECLARATORY JUDGMENT AND INJUNCTION RELIEF

Comes Now Plaintiff, Michael Moore for his Complaint against Defendants, state as follows;

1. That Plaintiff is and at all times mentioned a taxpayer and resident of the City of

Kirkwood.

2. That thereafter the shootings at Kirkwood City Hall on February 7, 2008, Defendants

Mayor Art McDonnell, and City Council Members Timothy E. Griffin, Joseph E. Godi, Paul W.

Ward, Iggy Yuan, Gerry Biedenstein and Gina Jaksetic, (collectively referred to hereinafter as

the “City”) by unanimous vote approved an unwritten motion on March 20, 2008, to

cooperate and accept the proposed services of the Community Relation Services of the United

States Department of Justice (referred to hereinafter as “CRS”). See a true and correct copy of

the meeting minutes on the motion attached hereto and incorporated herein as Exhibited “A”.

3. That the City, thereafter March 20, 2008, nominated, elected, and appointed a team

consisting of Defendants Arthur J. McDonnell, Iggy Yuan, Michael G. Brown, Georgia Ragland,

and Jack Plummer (collectively referred to hereinafter as the “City Team of Kirkwood”) elected

and appointed to act as agents on behalf of the City in mediation proceedings to hear and redress

grievances.

4. That on August 21, 2008, the City adopted Resolution 70-2008 endorsing the mediation

conflict resolution process proposed by CRS for the purpose of the preservation of the public

peace and good order of Kirkwood. See a true and correct copy of said Resolution attached

hereto and incorporated herein as Exhibited “B”.

5. That on or thereafter August 21, 2008, Defendants David Bennett, Lois Bliss, Vernon

Gundermann, Ron Hodges, Charles Howard, and Cynthia Isaac (collectively referred to

hereinafter as the “Community Team of Kirkwood”) were nominated, elected, and appointed to

act as representatives on behalf of the entire Kirkwood community to delivery and convey

grievances in said mediation proceedings.

6. That on or thereafter December 8, 2008, the City team of Kirkwood and the Community
Team of Kirkwood engaged in the mediation proceedings for about the past 14 months.

7. That on January 21, 2010, the City Team of Kirkwood on behalf of the City, and the

Community Team of Kirkwood on behalf of the entire Kirkwood community, thereafter 7PM

executed a Mediation Agreement that would allow the amending to City Code of Ordinance

Chapter 12 Human Rights; in addition, implementation of various new police programs that

would allegedly improve the preservation of the peace, safety and general welfare of the citizens

of Kirkwood with an emphasis on the minority community. See a true and correct copy of said

Mediation Agreement attached hereto and incorporated herein as Exhibited “C”.

8. January 21, 2010, thereafter executing the Mediation Agreement the City enacted

Resolution 4-2010 adopting the Mediation Agreement between the City Team of Kirkwood and

the Community Team of Kirkwood. See a true and correct copy of said Resolution attached

hereto and incorporated herein as Exhibited “D”.

9. That Defendants thereafter the adoption of resolution 4-2010 threaten to enforce

Mediation Agreement, and to review its progress thereafter six months from the date of

execution.

II. Reason for Granting Relief

A. An Injunction Is the Appropriate Remedy in This Case

10. “Injunction does not lie except to protect a substantial right.” Herron v. Sisk (App.1981)

625 S.W. 2d 909

11. “Threat of wrongful and injurious invasion of legal right of plaintiff by one having power

to do the wrong can furnish basis for injunctive relief”. Schaeffer v. Kleinknecht (App.1980) 604

S.W. 2d 751.

B. No Adequate Remedy.

12. That Plaintiff does not have adequate remedy because monetary compensation cannot

compensate for breach of duty of elected officials, and the loss of constitutional rights.

C. No Ordinance Adopted or Cooperative Agreement with Agency of the United States.

13. The common services provided by CRS is stated under its Legislative Mandate §2000g-
1, which reads:

It shall be the function of the Service to provide assistance to communities

and persons therein in resolving disputes, disagreements, or difficulties
relating to discriminatory practices based on race, color, or national origin
which impair the rights of persons in such communities under the Constitution
or laws of the United States or which affect or may affect interstate commerce.

14. CRS Legislative Mandate §2000g-2 a) reads:

“The Service shall, whenever possible, in performing its functions, seek

and utilize the cooperation of appropriate State or local, public, or private
agencies.”

15. Mo. Rev Stats §70.230 Reads in pertinent part:

“Any municipality may exercise the power referred to in section 70.220 by

ordinance duly enacted, *** political subdivision then by resolution of its governing
body or officers made and entered in its journal or minutes of proceedings, which shall provide
the terms agreed upon by the contracting parties to such contract or cooperative action.”

16. Mo. Rev Stats §70.220 Reads in pertinent part;

“Any municipality or political subdivision of this state, as herein defined,

may contract and cooperate with *** a duly authorized agency of the United States,
***for a common service; provided, that the subject and purposes of
any such*** cooperative action made and entered into by such municipality
or political subdivision shall be within the scope of the powers of such
municipality or political subdivision.”

17. The subject and purposes for the City’s cooperative action with CRS stems from the shooting

deaths of Kirkwood Police Sgt William McEntee, Kirkwood Police Sgt. William Biggs, Kirkwood

Police Officer Tom Ballman, Mayor Mike Swoboda, Council Members Connie Karr, and Michael Lynch,

Public Works Director Ken Yost, and Charles Lee “Cookie” Thornton.

18. City Code of Ordinance Chapter 2 Article II, Section 2-27 reads in pertinent part;

“The city council***shall have the power to enact and ordain any and all ordinances
that they shall deem expedient for the good government of the city, the preservation
of peace and good order, *** of the inhabitants thereof.”

19. August 21, 2008, the City enacted and adopted Resolution 70-28, Section 1, which reads;

“The City Council of the City of Kirkwood hereby endorses the resolution process
proposed by the Community Relations Services of the United States Department of
Justice for the purpose of assisting City wide community spirit, communication, and
involvement.”

“Where the charter provides that a particular power shall be exercised by ordinance, its exercise

in any other manner, as by resolution would not be legal”. Layne v. City of Windsor, 442 S.W. 2d

497 (Mo. 1969).

20. Resolution 70-2008 further violates City Charter Article III Section 3.11, which reads in

pertinent part;

The City Clerk***, authenticate by signature of the City Clerk all*** resolutions.

21. City Code of Ordinance Chapter 2 Section 2-184 (5) reads;

“Affix the official seal of the city to and attest to all public instruments and contracts”

Resolution 70-2008 is absent of said seal.

D. City’s Agents the City Team of Kirkwood Unauthorized to Act

22. The City, under color of office nominated, elected and appointed Defendants the City

Team of Kirkwood to act as agents on the City’s Behalf without legislative authority to

cooperate with CRS concerning mediation for redress of grievances.

23. Kirkwood City Charter Article III Section 3.3 (f) (vi) reads;

“In addition to being a member of the city council the Mayor shall:
Place in nomination for consideration of the city council nominees for
the positions of the City Attorney, Municipal Judge, City Clerk and
members of all boards, commissions and committees of the city.
The council by ordinance may also provide for such nominations to be made by its other
member”;

the City Team of Kirkwood is not define as a board, commission or committee to be

nominated by the mayor and appointed by the City.

24. Kirkwood City Charter Article III Section 3.1 reads:

“All powers of the city shall be vested in the council unless specifically provided
otherwise in this charter. The council shall provide for the exercise of these powers
and for the performance of all duties and obligations imposed on the city by law”.

“The law is well settled that a municipal corporation can not surrender or contract away its

governmental functions and powers." Stewart v. City of Springfield, 165 S.W.2d 626, 629 (Mo.

banc 1942).

25. The City, under color of office infringed on Plaintiff’s First Amendment right to

petition the government for a redress of grievances by unconstitutionally surrendering their duty

and governmental function to the City Team of Kirkwood to hear and redress Plaintiff’s

grievances "A city has no power to hamper the free exercise of its legislative discretion. "
Joseph v. Marriott Int'l, Inc., 967 S.W.2d 624, 628 (Mo. App. W.D. 1988).

E. Community Team of Kirkwood No Legal Authority and Unauthorized to Act.

26. The City under color of office impermissibly infringed on Plaintiff’s First Amendment

right to free speech when City nominated, elected, and appointed Defendants Community Team

of Kirkwood, which had no legal or legislative authority to neither act for nor represent

Plaintiff’s behalf to submit grievances for redress to agents of the City.

27. The Community Team of Kirkwood purported that they represented Plaintiff

complaints to the City Team of Kirkwood for redress. However, Plaintiff gave no authority and

had no notice or knowledge of any political process that would have allow Plaintiff the freedom

of choice to communicate his position to elect, denying Plaintiff of his political rights.

F. Resolution 4-2010 Adopting Mediation Agreement Invalid.

28. The City approved and enacted Resolution 4-2010 adopting a Mediation Agreement.” An

agreement held invalid when approved by resolution instead of ordinance as required by

Charter”. Schmoll v. Hous. Auth. of St. Louis County, 321 S.W.2d 494 (Mo. 1959)

29. City Charter Article III, Section 3.3 (f) (iv); and the City Code of Ordinance Chapter 2,

Section 2-108 (4) which requires the mayor to execute all contracts and documents and the city

clerk to affix the official city seal thereon pursuant to City Code of Ordinance Chapter 2, Section

2-184 (5). the agreement is absent of the mayor’s signature and official city seal required under

the charter.

30. The Mediation Agreement is non-binding and unenforceable in a court of competent

jurisdiction; however, it is still Plaintiff’s right under the Fourteenth Amendment to contract, and

that right was hampered by governmental interference who granted non-authorized agents the

authority to execute the Mediation Agreement on Plaintiff’s behalf when Plaintiff had no

knowledge of the language, terms and conditions therein that were agreed upon until thereafter

the execution of the Agreement; thereby, infringing on Plaintiff’s liberty rights secured by the

Fourteenth Amendment. “The right to make contract is both a liberty and a property right and is
with the protection against the taking of liberty and property without due process of law.”

Andrus v. Business MenAccident (1920) 223 S.W. 70 283 Mo. 442.

G. Plaintiff Will Suffer Irreparable Harm If A Preliminary Injunction Is Not Granted.

31. Plaintiff will suffer irreparable harm if an injunction does not issue. Absent an injunction

that enjoins the enforcement of a Mediation Agreement, will interfere with the protection of

Plaintiff’s fundamental rights cause by the City’s inability to carry out and perform its

legislative duty in the interest of the public to which the City is the guardian. Breach of duty by

the City constitutes irreparable harm. “

H. An Injunction Will Serve The Public Interest.

32. It is always in the public interest to protect constitutional rights” Phelps-Roper,545

F.3d at 689. The public interest is served by preventing the continuation of likely

unconstitutional enforcement of a Mediation Agreement that was formulated thereby the

violations of the Constitution, states statues, city charter, and city ordinances. The

public interest supports an injunction that is necessary to prevent a government entity from

violating the constitution. Doev. South Iron R-1 School Dist. 453 F.Supp. 2d 1093, 1103 (E.D.

Mo. 2006)

Wherefore Plaintiff prays this Court:

33. Enter declaratory judgment in favor against Defendants finding that Plaintiff’s First and

Fourteenth Amendments rights were infringed.

34. Enter declaratory judgment in favor against Defendants finding that Defendants

violated;

(a) City Code of Ordinance Chapter 2 Article II, Section 2-27;

(b) Mo. Rev Stats §70.220;
(c) Mo. Rev Stats §70.230
(d) Kirkwood City Charter Article III Section 3.3 (f) (vi);
(e) Kirkwood City Charter Article III Section 3.1;
(f) City Charter Article III, Section 3.3 (f) (iv);
(g) City Code of Ordinance Chapter 2, Section 2-108 (4);

35. Enter declaratory judgment in favor against Defendants finding that Mediation

Agreement is void and invalid.

36. Enter declaratory judgment in favor against Defendants finding that Defendants

operated under the color of their office.

37. Issue an order granting preliminary and permanent injunctions enjoining enforcement of

Mediation Agreement by any Defendant or any officer, agent servant, employee, attorney of any

Defendants and by all persons acting in concert with them or in connection with them;

38. Issue an order for a preliminary and permanent injunction judgment reversing and

setting aside any hearing approval and vote by the City Council approving the unwritten motion

on March 20, 2008, Resolution 70-2008, Resolution 4-2010;

39. Allow such other and further relief to which Plaintiffs may be entitled.

Respectfully Submitted,

____________________
Michael Moore, Plaintiff
10838 Big Bend Rd
St. Louis, Missouri 63108
(314) 821-2701
Email: mooremichael23@yahoo.com

CERTIFICATE OF SERVICE

I certify that I served a copy of the foregoing upon Defendants listed at the address listed below

by placing a copy in the first-class mail with postage paid on Febuary___2010.

City of Kirkwood and

City Team of Kirkwood;

Kirkwood Mayor
Art McDonnell

City Council Member

Timothy E. Griffin

City Council Member

Paul W. Ward

City Council Member

Iggy Yaun
City Council Member
Gerry Biedenstein

City Council Member

Gina Jaksetic

Police Chief
Jack Plummer,

All named above served @

Kirkwood City Attorney

John M. Hessel
500 North Broadway, Suite 2000
St. Louis, MO 63102

And

Community Team of Kirkwood;

David Bennett

Lois Bliss

Ron Hodges

Vernon Gundermann

Charles Howard

Cynthia Isaac

All named above served @

201 W. Adams Ave

Kirkwood, Mo 63122