Missouri Bankers Association, Inc., and Jonesburg State Bank v. St. Louis County, Missouri, and Charlie A. Dooley

SUPREME COURT OF MISSOURI
en banc
MISSOURI BANKERS )
ASSOCIATION, INC., and )
JONESBURG STATE BANK, )
)
Appellants, )
)
vs. ) No. SC93848
)
ST. LOUIS COUNTY, MISSOURI, )
and CHARLIE A. DOOLEY, )
)
Respondents. )

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
The Honorable Brenda Stith Loftin, Judge

Opinion issued November 12, 2014

Missouri Bankers Association, Inc. and Jonesburg State Bank (hereinafter and

collectively, “Bankers”) sought a judgment declaring an ordinance that implemented a

foreclosure mediation program invalid. This Court holds St. Louis County (hereinafter,

“the County”) exceeded its charter authority when enacting the ordinance and the

ordinance was void ab initio. This Court further holds Bankers are not entitled to an

award of attorneys’ fees pursuant to their Hancock Amendment claim. The circuit

court’s judgment is reversed, and the case is remanded. 1

1
This Court transferred this case after an opinion by the Missouri Court of Appeals,
Eastern District. Portions of the court of appeals opinion are incorporated without further
attribution.
 Factual and Procedural History

In 2012, the St. Louis County Council adopted an ordinance titled the “Mortgage

Foreclosure Intervention Code.” The ordinance stated it addressed “the national

residential property foreclosure crisis” and the negative impact this national crisis had on

the County’s property values, tax base, budget, assessments, and collection of real

property taxes. The ordinance recognized that “unsecured and unmaintained properties

present a danger to the health, safety and welfare of the public … and as such, constitute

a public nuisance.” In response to this nuisance, the ordinance implemented a mediation

program requiring lenders to provide residential borrowers an opportunity to mediate

prior to foreclosure.

The ordinance mandates the lender provide the homeowner with written notice of

the mediation process, the homeowner’s right to request mediation, and a notice of

foreclosure. Along with these notices, the lender must pay a nonrefundable fee of $100

to a mediation coordinator who manages and oversees the mediation program. The

mediation coordinator must make at least three attempts to contact the homeowner

regarding participation in the mediation program.

If the homeowner chooses to participate in the mediation program, the mediation

must be scheduled within sixty days. The lender must pay an additional $350 fee to the

mediation coordinator. If the parties are able to reach a settlement regarding the

foreclosure prior to the mediation, the $350 fee is refunded to the lender. If the parties

are unable to reach a settlement during the mediation conference, the lender is deemed to
have satisfied the ordinance’s requirements so long as the lender has made “a good faith

effort” to settle the matter.

After satisfying the ordinance’s requirements, the mediation coordinator must

issue the lender a certificate of compliance attesting the lender has complied with the

ordinance and is eligible to record the foreclosure deed without penalty. If the

homeowner fails to respond or declines to participate in the mediation program, the

lender shall be deemed to have satisfied the ordinance’s requirements and will receive a

certificate of compliance within one business day. The certificate of compliance must be

filed with the county assessor simultaneously with the filing of a conveyance of the

foreclosed property with the county recorder of deeds. Failure to obtain and file a

certificate of compliance does not prevent the recording of the conveyance; however, the

ordinance subjects the lender to criminal prosecution and a fine up to $1,000 for failure to

comply. 2

Bankers filed suit against the County and Charlie A. Dooley, the county executive

(hereinafter and collectively, “the County”), seeking a declaratory judgment and

injunctive relief. Bankers presented six counts, alleging the ordinance: (1) conflicted

with state statutes; (2) violated the Hancock Amendment, Mo. Const. art. X, sec. 22; (3)

violated Missouri constitutional taxation provisions; (4) violated Missouri constitutional

restrictions on charter county authority; (5) violated Bankers’ rights; and (6) violated the

2
Actual compliance with the ordinance constitutes a complete defense for the lender if
subsequently prosecuted.

3
County charter. The circuit court issued a temporary restraining order enjoining the

County from enforcing the ordinance. Both parties filed motions for summary judgment.

After reviewing the pleadings, the circuit court dissolved the restraining order and

sustained the County’s motion for summary judgment. The circuit court held the County

possessed the charter authority to enact the ordinance, the ordinance was a valid exercise

of the County’s police power, and the ordinance was not preempted by state law. The

circuit court further found the fees associated with the ordinance did not violate the

Hancock Amendment.

Bankers appealed. During the pendency of the appeal at the court of appeals, the

legislature enacted a new state mortgage law, section 443.454, RSMo Supp. 2013. This

statute, effective August 28, 2013, states:

The enforcement and servicing of real estate loans secured by mortgage or
deed of trust or other security instrument shall be pursuant only to state and
federal law and no local law or ordinance may add to, change, delay
enforcement, or interfere with any loan agreement, security instrument,
mortgage or deed of trust. No local law or ordinance may add, change, or
delay any rights or obligations or impose fees or taxes of any kind or
require payment of fees to any government contractor related to any real
estate loan agreement, mortgage or deed of trust, other security instrument,
or affect the enforcement and servicing thereof.

Section 443.454 expressly prohibits local municipalities from enforcing the type of

ordinance the County enacted. The court of appeals requested additional briefing

discussing the impact of the new legislation on the ordinance’s validity. The County

conceded there was an express conflict between section 443.454 and the ordinance and

stated it would not enforce the ordinance. The County then argued the statute’s passage

rendered the controversy moot. The court of appeals agreed, dismissed the appeal, and

4
ordered the case be remanded so that the circuit court could vacate the judgment and

dismiss the lawsuit. 3 This Court granted transfer. 4 Mo. Const. art. V, sec. 10.

Mootness

Initially, this Court must address whether this cause is moot due to the enactment

of section 443.454.

A cause of action is moot when the question presented for decision seeks a
judgment upon some matter which, if the judgment was rendered, would
not have any practical effect upon any then existing controversy. When an
event occurs which renders a decision unnecessary, the appeal will be
dismissed. And where an enactment supersedes the statute on which the
litigants rely to define their rights, the appeal no longer represents an actual
controversy, and the case will be dismissed as moot.

Humane Soc’y of United States v. State, 405 S.W.3d 532, 535 (Mo. banc 2013) (quoting

C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 325 (Mo. banc 2000)). Enactment of

subsequent legislation will cause a challenge to a law to become moot if the law being

challenged is repealed. C.C. Dillon Co., 12 S.W.3d at 325.

At the outset, the County argues the enactment of section 443.454 renders the

cause moot because the statute expressly prohibits what the ordinance permits. The

County stated on appeal it would not enforce the ordinance going forward. However, the

County concurrently argues this Court should hold the ordinance remains valid because

of the County’s charter authority granted to it pursuant to Missouri Constitution article

3
One judge dissented, arguing the mediation program was a valid exercise of the
County’s broad authority to regulate municipal services and functions under Missouri
Constitution article VI, section 18(c). The dissenting judge further argued the County
made no claim that it would repeal the ordinance and remained free to resume
enforcement at any time; hence, the controversy remained ripe for determination.
4
The Business Bank of St. Louis filed an amicus brief in support of Bankers.
5
VI, section 18(c), which it believes takes precedence over any state statute. Further, it is

undisputed the ordinance has not been repealed. Had the constitutional validity of the

ordinance in light of the enactment of the statute been the only issue in the case, and had

the ordinance been repealed after the statute’s enactment, this Court’s basis for deciding

the ordinance’s constitutional validity would have dissolved. C.C. Dillon Co., 12 S.W.3d

at 325. In light of the County’s argument concerning the scope of its charter authority,

and because the ordinance was not repealed after section 443.454 was enacted, the issues

presented are not moot.

Standard of Review

This Court’s review of an appeal from summary judgment is de novo. ITT

Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.

banc 1993). Summary judgment is appropriate when the record demonstrates there are

no genuine issues of material fact and the moving party is entitled to judgment as a matter

of law. Hargis v. JLB Corp., 357 S.W.3d 574, 577 (Mo. banc 2011). “A summary

judgment, like any trial court judgment, can be affirmed on appeal by any appropriate

theory supported by the record.” Columbia Cas. Co. v. HIAR Holding, L.L.C., 411

S.W.3d 258, 264 (Mo. banc 2013).

Ordinances are presumed to be valid and lawful. McCollum v. Dir. of Revenue,

906 S.W.2d 368, 369 (Mo. banc 1995). “An ordinance must be construed to uphold its

validity unless it is ‘expressly inconsistent or in irreconcilable conflict’” with a statute or

provision of the Missouri Constitution. Home Builders Ass’n of Greater St. Louis, Inc. v.

City of Wildwood, 107 S.W.3d 235, 238 (Mo. banc 2003) (quoting McCollum, 906

6
S.W.2d at 369). Whether the ordinance conflicts with state law is a question of law this

Court reviews de novo. State ex rel. Sunshine Enterprises of Missouri, Inc. v. Bd. of

Adjustment of City of St. Ann, 64 S.W.3d 310, 314 (Mo. banc 2002).

Validity of the Ordinance

Bankers raise a number of arguments challenging the validity of the ordinance. 5

Among those arguments is whether Missouri Constitution article VI, section 18 grants the

County the charter authority to enact the ordinance and whether that enactment takes

precedence over other legislative enactments, such as section 443.454. 6 Bankers contend

the County cannot invade the province of general legislation involving the public policy

of the state as a whole, nor can it exempt itself from complying with state law by

characterizing inconsistent ordinances as an exercise of municipal police power.

5
Many of Bankers’ points on appeal contain multifarious allegations of error. Rule
84.04(d) requires that a point relied on shall: (1) identify the challenged ruling; (2)
concisely state the legal reasons for the claim of error; and (3) explain in summary
fashion why the reasons support the claim of error. A point relied on violates Rule
84.04(d) when it groups together multiple contentions not related to a single issue and is
subject to dismissal. Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978).
Nevertheless, when possible, “[t]his Court’s policy is to decide a case on its merits rather
than on technical deficiencies in the brief.” J.A.D. v. F.J.D., 978 S.W.2d 336, 338 (Mo.
banc 1998).
6
Bankers also allege the ordinance conflicts with section 362.109, RSMo. Supp. 2008
(mandating that ordinances “shall be consistent with and not more restrictive than state
law and regulations governing lenders or deposit-taking entities” regulated by the state
division of finance); chapter 443 (regulating foreclosure and not requiring mediation
prior to foreclosure); section 408.555, RSMo Supp. 2006 (entitling a lender to take
possession after a notice period); section 442.020 (providing conveyance of deeds shall
be made “without any other act or ceremony whatsoever”); chapter 53 (by creating
additional responsibility for the county assessor beyond those enumerated in the statute);
and Mo. Const. art. I, sec. 13 (prohibiting the passage of any law that impairs the
obligation of contracts or is retrospective in its operation). All statutory references are to
RSMo 2000 as supplemented.
7
Article VI, Section 18(b) Charter Authority

Article VI, section 18(b) provides that a charter county shall possess an implied

grant of power “for the exercise of all powers and duties of counties and county officers

prescribed by the constitution and laws of the state ….” See also Hellman v. St. Louis

Cnty., 302 S.W.2d 911, 915 (Mo. 1957). This power is limited, however, in that “a

charter or ordinance enacted under [section] 18(b), may not ‘invade the province of

general legislation’ involving the public policy of the state as a whole.” Flower Valley

Shopping Ctr., Inc. v. St. Louis Cnty., 528 S.W.2d 749, 754 (Mo. banc 1975) (quoting

State ex rel. Spink v. Kemp, 283 S.W.2d 502, 514 (Mo. banc 1955)).

Bankers argue the County exceeded its charter authority under article VI, section

18(b) because the ordinance conflicts with the general laws and public policy of the state

regarding foreclosures, particularly with section 443.454. The County acknowledges the

legislature stated its express intent to regulate issues related to real property foreclosure

as a statewide concern by passage of section 443.454, thus limiting a municipality’s

power to govern in this area. While the County concedes there is a direct conflict

between the ordinance and section 443.454, it asserts that article VI, section 18(c) grants

the County superior legislative authority and, as such, the ordinance supersedes the

statute and remains valid.

Article VI, Section 18(c) Charter Authority

Article VI, section 18(c), as amended in 1970, authorizes a charter county to

“provide for the vesting and exercise of legislative power pertaining to any and all

services and functions of any municipality or political subdivision, except school

8
districts, throughout the entire county within as well as outside incorporated

municipalities ….” A charter county “functions in a dual capacity, sometimes

performing state functions and sometimes performing municipal functions ….” Schmoll

v. Housing Auth. of St. Louis Cnty., 321 S.W.2d 494, 498 (Mo. 1959). A charter county

is not required to exercise the powers and duties granted to it in precisely the same

manner as prescribed by the general law of the state. Hellman, 302 S.W.2d at 916.

One of the powers delegated by the state to charter counties pursuant to article VI,

section 18(c) is the police power. Casper v. Hetlage, 359 S.W.2d 781, 789 (Mo. 1962).

“Generally, the function of the police power has been held to promote the health, welfare,

and safety of the people by regulating all threats either to the comfort, safety, and welfare

of the populace or harmful to the public interest.” Craig v. City of Macon, 543 S.W.2d

772, 774 (Mo. banc 1976). A charter county’s exercise of the police power delegated by

the state pursuant to article VI, section 18(c) is a governmental function. Casper, 359

S.W.2d at 789.

Several cases support the County’s argument that the police powers delegated to a

charter county are constitutional grants of authority that are not subject to, but take

precedence over, the legislative power. See State on Info. of Dalton ex rel. Shepley v

Gamble, 280 S.W.2d 656, 660 (Mo. banc 1955) (resolving quo warranto dispute

concerning newly created charter county police department and conflicting state statutes);

Casper, 359 S.W.2d at 789-90 (holding statutory provision requiring unanimous vote on

rezoning was superseded and did not apply to charter county); State ex rel. City of Creve

Coeur v. St. Louis Cnty., 369 S.W.2d 184, 187 (Mo. 1963) (same); St. Louis Cnty. v. City

9
of Manchester, 360 S.W.2d 638, 641 (Mo. banc 1962) (permitting charter county to zone

for sewage disposal plant). Here, however, the question becomes whether the area the

County intends to regulate pursuant to its police power is a matter of purely local

concern. See State ex rel. St. Louis Cnty. v. Campbell, 498 S.W.2d 833, 836 (Mo. App.

1973) (holding when a county is addressing a matter of purely local concern, the

procedures specified in the charter supersede the statutes).

Regardless of its charter, the County remains a legal subdivision of the state.

Casper, 359 S.W.2d at 784. As such, it can only control “[m]atters of purely municipal,

corporate concern …” and its actions “must be in harmony with the general law where it

touches upon matters of state policy.” Kansas City v. J.I. Case Threshing Mach. Co., 337

Mo. 913, 87 S.W.2d 195, 202 (Mo. banc 1935). This Court has long recognized, “It is an

essential element of all constitutional provisions establishing the principle of municipal

home rule that the constitution and general laws of the state shall continue in force within

the municipalities which have framed their own charters, and that the power of the

municipality to legislate shall be confined to municipal affairs.” Id. (emphasis added).

See also Grant v. Kansas City, 431 S.W.2d 89, 93 (Mo. banc 1968). “Little purpose

would be served in authorizing the adoption of charters of local self-government in the

more populous counties if such counties could not adopt reasonable means and methods

of carrying out their governmental functions in such a manner as to meet the peculiar

needs of such counties.” Hellman, 302 S.W.2d at 916 (holding the problems attendant to

uniform assessment of taxable property in the county was “unique”) (emphasis added).

10
 Here, the County explicitly states the ordinance was enacted to address “the

national residential property foreclosure crisis” and its impact on the County. The

County argues the municipal enactment of foreclosure mediation programs similar to its

own had been recognized consistently as a valid exercise of municipal police power,

citing one case from Rhode Island and two from Massachusetts for persuasive support.

See Deutsche Bank Nat’l Trust Co. v. City of Providence, P.C. No. 10-1240 (Providence

Superior Ct., May 17, 2010) (upholding city ordinance requiring foreclosure mediation,

but severing deed recording requirements that conflicted with state law); Easthampton

Savings Bank v. City of Springfield, 874 F. Supp. 2d 25 (D. Mass. 2012) (upholding city’s

foreclosure mediation ordinance in face of contracts clause, state preemption, and police

powers challenges); and Jepson v. Deutsche Bank Nat’l Trust Co., 969 F. Supp. 2d 202

(D. Mass. 2013) (discussing general benefits of pre-foreclosure mediation programs, but

dismissing cause of action). While two of the three cases the County relies upon upheld

municipal enactments in other jurisdictions, this Court is not bound by their holdings. 7

Municipal regulations meant to address a national crisis, which affect every state

in the country, are not a matter of such distinctly local concern that the County is

authorized to legislate pursuant to its delegated police power. The question of whether

7
The enactment of statewide programs across the country further undercuts the County’s
argument that its program addresses a purely local matter. At least twenty-three states
have enacted some type of statewide foreclosure mediation program, either through state
legislation or by way of state court rule, to address this national crisis. See Resolution
Systems Institute, Foreclosure Dispute Resolution Program Models State-By-State,
compiled by Heather Scheiwe Kulp,
http://www.aboutrsi.org/pfimages/ForeclosureMediationProgramModels_September2012
.pdf. (last accessed October 8, 2014; copy added to file).
11
lenders and residential borrowers should be required to participate in a mediation

program prior to foreclosure and that mandates a lender obtain a certificate of compliance

prior to filing a conveyance or face criminal prosecution is one of state interest. This

finding is supported by the legislature’s enactment of section 443.454, which explicitly

limits a municipality’s authority to govern this area. Accordingly, this issue is not a

purely local concern that authorizes the County to regulate by local ordinance under the

charter authority granted to it by article VI, section 18(c).

Acts performed by a county that are beyond the powers granted or necessarily

implied from its charter are void. Schmoll, 321 S.W.2d at 498. To declare legislation

“‘void’ means that it never had the authority to create any legal rights or responsibilities

whatsoever.” R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744, 746 (Mo. banc 2004). As

a general rule, legislation that is unconstitutional is void ab initio. State ex rel. Pub.

Defender Comm’n v. Cnty. Court of Greene Cnty., 667 S.W.2d 409, 413 (Mo. banc

1984). This Court holds the circuit court erred in sustaining summary judgment in the

County’s favor on this claim because the County’s implementation of the mediation

program was void and unenforceable ab initio.

Hancock Amendment

Bankers also brought a claim challenging the ordinance’s validity under the

Hancock Amendment. The Hancock Amendment prohibits a county from “levying any

tax, license, or fees” without voter approval. Mo. Const. art. X, sec. 22(a). Any taxpayer

may file suit to enforce a Hancock Amendment provision, and, “if the suit is sustained,

shall receive from the applicable government his [or her] costs, including reasonable

12
attorneys’ fees incurred in maintaining such suit.” Mo. Const. art. X, sec. 23. Bankers

claim their declaratory judgment action precipitated the invalidation of the ordinance and

should be deemed “sustained” for purposes of an award of attorneys’ fees.

Bankers’ Hancock Amendment claim fails because this Court holds the County’s

implementation of the foreclosure mediation program was void ab initio. Even assuming

the County obtained voter approval for levying the fees ordered by the ordinance, the

County still lacked the charter authority to enact the program at its inception, much less

impose any fees. Accordingly, the County could not violate the Hancock Amendment. It

follows that that Bankers’ claims for attorneys’ fees must fail because their suit has not

been “sustained” to warrant an award pursuant to article X, section 23.

Conclusion

The circuit court erred in sustaining summary judgment in the County’s favor

because the ordinance implementing the mediation program was void and unenforceable

ab initio. Bankers are not entitled to an award of attorneys’ fees for their Hancock

Amendment claim. The circuit court’s judgment is reversed, and the case is remanded.

______________________________
GEORGE W. DRAPER III, JUDGE

Russell, C.J., Breckenridge, Fischer, Stith
and Wilson, JJ., concur; Teitelman, J.,
dissents in separate opinion filed.

13
 SUPREME COURT OF MISSOURI
en banc

MISSOURI BANKERS ASSOCIATION, )
INC., and JONESBURG STATE BANK, )
)
Appellants, )
)
vs. ) No. SC93848
)
ST. LOUIS COUNTY, MISSOURI, and )
CHARLIE A. DOOLEY, )
)
Respondents. )

Dissenting Opinion

I respectfully dissent from the principal opinion’s holding that the County’s

foreclosure ordinance is void because it exceeds the County’s legislative power

granted by article VI, section 18(c) of the Missouri Constitution. I would hold that

the ordinance is a valid exercise of the County’s legislative power because the

ordinance is precisely tailored to the local symptoms of the foreclosure crisis. 1

Article VI, section 18(c) authorizes a charter county to enact legislation

concerning “any and all services and functions of any municipality or political

subdivisions, except school districts ....” Mo. Const. art. VI, sec. 18(c). As used

1
This opinion draws on the well-reasoned dissent authored by the Honorable Lisa Van
Amburg of the Missouri Court of Appeals, Eastern District.
in article VI, section 18(c), the County’s “functions” include “all of the activity

appropriate to the nature of political subdivisions or municipalities which combine

to produce services, those specific acts performed by political subdivisions or

municipalities for the benefit of the general public.” Chesterfield Fire Prot. Dist.

Of St. Louis Cnty. v. St. Louis Cnty., 645 S.W.2d 367, 371 (Mo. banc 1983)

(holding that St. Louis County’s charter authority permitted the County to

establish a countywide fire standards commission). The legislative powers

granted by article VI, section 18 “are constitutional grants which are not subject

to, but take precedence over, the legislative power.” State on Info. of Dalton ex

rel. Shepley v. Gamble, 280 S.W.2d 656, 660 (Mo. banc1955). Thus, if the

County enacts an ordinance that pertains to a County “function,” that ordinance

will supersede a state statute that touches upon that same issue. See State ex rel.

St. Louis Cnty. v. Campbell, 498 S.W.2d 833, 836 (Mo. App. 1973) (St. Louis

county charter provisions regulating the appointment of condemnation appraisers

supersedes general state condemnation statutes). The dispositive question is

whether the foreclosure ordinance pertains to a County “function” so that the

County is empowered to legislate pursuant to article VI, section 18(c).

In Casper v. Hetlage, 359 S.W.2d 781, 789 (Mo. 1962), this Court

specifically recognized that “the exercise of police power is a governmental

function, [a portion of which] . . . has been delegated to St. Louis County by

Section 18(c) of Article VI of the Constitution of Missouri.” A traditional and

long-recognized incident of the local government police power is the regulation of

2
the use and disposition of real property. Consequently, Missouri cases have

recognized that perhaps the “only consistent thread in the whole tangled skein of

cases” on charter county power is that charter counties have substantial autonomy

to regulate the disposition of real property within their borders. See State ex rel.

St. Louis Cnty, 498 S.W.2d 833 at 836 (explaining that “the power of

condemnation is a matter of local concern so that the procedure specified in the

charter supersedes the statutes”); Williams v. White, 485 S.W.2d 622, 624 (Mo.

App. 1972) (“[T]he power of a county under a Home Rule Charter to exercise

legislative powers, including the adoption of zoning ordinances, is derived directly

from the Constitution[;] ... when adopted such ordinances supersede statutory

zoning provisions.”).

Like ordinances regulating condemnation or zoning, the County’s

foreclosure mediation ordinance is essentially a regulation of the disposition of

real estate within the County’s borders. The County foreclosure ordinance does

nothing more than require mediation before homeowners are forced to

involuntarily sell and vacate their homes. The ordinance regulates the disposition

of real estate and is, therefore, a valid exercise of the County’s police power that is

within the purview of a governmental “function” subject to the County’s

legislative power granted by article VI, section 18(c).

The principal opinion holds that the ordinance exceeds the County’s

legislative authority because it does not regulate local concerns. More

specifically, the principal opinion reasons that the ordinance (1) was enacted to

3
address a national crisis and (2) the ordinance is inconsistent with section 443.454,

which provides that the enforcement and servicing of loans secured by mortgages

shall be pursuant to state and federal law. I respectfully disagree with both

propositions.

It is true, as the principal opinion notes, that the County enacted the

ordinance to “address the national foreclosure crisis” and its impacts on the

County. The fact that the underlying reasons for the foreclosure crisis involve

national and international macroeconomic trends does not compel the conclusion

that the localized symptoms of this crisis are beyond the County’s constitutionally

granted legislative power. For instance, the summary judgment record

demonstrates that prior to enacting the foreclosure ordinance, the County

experienced a substantial increase in the rate of foreclosures and an attendant

decrease in property values and tax revenues. 2 In 2010, the foreclosure rate in St.

Louis County was more than four times the historical norm. In some areas,

foreclosure-related sales outnumbered owner-initiated sales by a factor of eight.

The County’s ordinance is directed specifically at ameliorating these purely local

impacts or symptoms of the broader foreclosure crisis. I would hold, consistent

with the cases cited by the principal opinion, that foreclosure mediation programs

2
See also Karen Tokarz, Kim L. Kirn, & Justin Vail, FORECLOSURE MEDIATION
PROGRAMS: A CRUCIAL AND EFFECTIVE RESPONSE BY STATES, CITIES, AND COURTS TO
THE FORECLOSURE CRISIS, ST. LOUIS B.J., Summer 2013, at 28 (discussing the problems
increased foreclosures impose on local governments).

4
like the one established by the County can be a valid exercise of local government

police power. 3

The principal opinion also asserts that section 443.454 explicitly limits the

Count’s power to regulate foreclosures and establishes that the County’s ordinance

conflicts with state law. It is true that a charter county ordinance cannot “invade

the province of general legislation involving the public policy of the state as a

whole ….” Flower Valley Shopping Cntr, Inc. v. Saint Louis County, 528 S.W.2d

749, 754 (Mo. banc 1975). It is also indisputable that statutes passed by the

legislature are an expression of public policy. See State ex rel. Equality Sav. &

Bldg. Ass’n v. Brown, 334 Mo. 781, 68 S.W.2d 55, 59 (Mo. banc 1934). However,

as noted, article VI, section 18(c) grants to charter counties legislative powers that

are grounded in the constitution and “which are not subject to, but take precedence

over, the legislative power.” Gamble, 280 S.W.2d at 660. If the passage of

section 443.454 could render the mediation program contrary to the “general

legislation of the public policy of the state as a whole,” then the scope of the

County’s constitutional grant of legislative power would be defined not by the text

3
See Deutsche Bank Nat’l Trust Co. v. City of Providence, P.C. No. 10-1240
(Providence Superior Ct., May 17, 2010) (upholding city ordinance requiring
foreclosure mediation, but severing deed recording requirements that conflicted
with state law); Easthampton Sav.Bank v. City of Springfield, 874 F.Supp.2d 25
(D. Mass. 2012) (upholding city’s foreclosure mediation ordinance in face of
contracts clause, state preemption, and police powers challenges); and Jepson v.
Deutsche Bank Nat’l Trust Co., 969 F.Supp.2d 202 (D. Mass. 2013) (discussing
general benefits of pre-foreclosure mediation programs, but dismissing cause of
action).

5
of the constitution but by the whim of the legislature. Section 443.454 has no

application in this case.

For the foregoing reasons, I would hold that the foreclosure ordinance is a

valid exercise of the County’s legislative power as granted by article VI, section

18(c) of the Missouri Constitution.

_________________________________
RICHARD B. TEITELMAN, Judge

6