inapplicable to County, because the Mediation Program is a valid exercise of County's broad authority to regulate municipal services and functions under Missouri Constitution article VI, section 18(c). County makes no claim that it will repeal the ordinance, and remains free to resume enforcement at any time. Therefore, this case is not moot. DISCUSSION The charter county system of government under article VI, section 18(c), of the Missouri Constitution was created in recognition of the fact that urgent local problems "require effective uniform county solutions, without the delay of obtaining approval from the state legislature." See Rex V. Gump, Local Government—County Home Rule and the
1970 Missouri Constitutional Amendment, 41 Mo. L. Rev. 49, 49 (1976). The foreclosure epidem ic that swept through St. Louis County is just such an urgent local problem. The summary judgment record herein reflects that in 2010, the peak year of the national foreclosure crisis, over 4,500 St. Louis County residents lost their homes to foreclosure. This number was more than a four-fold increase from the historical norm. Many neighborhoods saw in excess of eight foreclosure-related sales for each comparable owner-initiated sale, and foreclosed houses were commonly left abandoned and in poor condition. Property values in St. Louis County were falling, as was tax revenue used to support local government services such as school and fire districts. In response, Saint Louis County created a mediation program in order to encourage mortgage lenders and defaulting homeowners to explore negotiated alternatives to foreclosure. Section 433.454 does not moot this case, because the Mediation Program falls squarely within County's broad "legislative power pertaining to any and all [municipal] services and functions" as a charter county under article VI, section 18(c), of the Missouri Constitution. The Missouri Supreme Court defines "services and functions" liberally to 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. v. St. Louis Cnty., 645 S.W.2d 367, 371 (Mo. banc 1983). The exercise of the police power is one such appropriate activity. 1 Barber v. Jackson Cnty. Ethics
1 It is of note that the case of Information Technologies, Inc. v. Saint Louis County, 14, S.W.3d 60, 64 (Mo. App. E.D. 1999), states that the exercise of police power is a governmental function not possessed by charter counties. Information Technologies erroneously relies on a line from Kansas City v. J.I. Case Threshing Machine Co., 87 S.W.2d 195, 202 (Mo. banc 1935), which deals with the powers of charter cities—not
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Comm'n, 935 S.W.2d 62, 66 (Mo. App. W.D. 1996). The Mediation Program is a valid exercise of County's police power, as it creates a mechanism by which the County can protect its inhabitants from the scourge of widespread foreclosure, and its attendant ills of reduced property values, falling tax revenue, increased crime, disruption of families, and increased costs for police, fire, and emergency social services. See Miller v. City of Town & Country, 62 S.W.3d 431, 437 (Mo. App. E.D. 2001) ("An ordinance is a legitimate exercise of police power if the expressed requirements of the ordinance bear a substantial and rational relationship to the health safety, peace, comfort, and general welfare of the municipality's citizenry."); see generally 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 myriad perils local municipalities face during foreclosure epidemic). Likewise, 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. v. Campbell, 498 S.W.2d 833, 836 (Mo. App. 1973) (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
charter counties—under the Missouri Constitution of 1875. Likewise, J.I. Case Threshing Machine Co. relies at least in part on a quote from State ex rel. Hawes v. Mason, 54 S.W. 524, 529 (Mo. banc 1899), which was actually referring to a charter city's control over the police department, not the concept of "police power." As the Missouri Supreme Court plainly explained in Casper v. Hetlage, 359 S.W.2d 781, 789 (Mo. 1962), "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."
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zoning ordinances, is derived directly from the Constitution[;] . . . when adopted such ordinances supersede statutory zoning provisions."). Just as a county might use its power to enact zoning regulations to shape its real property landscape for the benefit of its residents' health, safety, and economic well-being, so too may that county encourage mediation before foreclosure, so that vast numbers of properties within its borders do not threaten its residents' health, safety, and economic well-being. "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." Casper, 359 S.W.2d at 790 (quoting Hellman v. St. Louis Cnty., 302 S.W.2d 911, 916 (Mo. 1957)). It is true that a charter county ordinance "may not 'invade the province of general legislation involving the public policy of the state as a whole,'" Flower Valley Shopping Center, Inc. v. Saint Louis County, 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)), and the laws of this state as declared by the legislature are certainly an expression of public policy, see State ex rel. Equality Savings & Building Association v. Brown, 68 S.W.2d 55, 59 (Mo. banc 1934). 2
2 This pronouncement in Flower Valley was quoted from Kemp, which dealt with charter city powers under Missouri Constitution article VI, section 19, et seq., not charter county powers under article VI, section 18, et seq. See Kemp, 283 S.W.2d at 514; see also State ex rel. St. Louis Cnty. v. Edwards, 589 S.W.2d 283, 286 (Mo. banc 1979) (citing Kemp). The constitutional powers of charter counties are much broader than those of charter cities. While section 19(a) grants charter cities all authority "not limited or denied . . .by statute," section 18(c)'s grant to charter counties contains no such limitation. Justice Seiler's concurrence in Flower Valley notes this fact, counseling that "county charters are instruments which grant power . . . . [not] instrument[s] to limit power, as is now true of charters for charter cities under the constitutional amendments adopted in 1971 to Art. VI, Secs. 19 and 19(a)." 528 S.W.2d at 754.
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But charter counties' powers "are constitutional grants which are not subject to, but take precedence over, the legislative power." Dalton ex rel. Shepley v. Gamble, 280 S.W.2d 656, 660 (Mo. banc 1955). If an ordinance is an exercise of a charter county's "legislative power pertaining to any and all [municipal] services and functions" under article VI, section 18(c), of the Missouri Constitution, it cannot be declared otherwise by statute. To say that the advent of section 443.454 could render the mediation program contrary to the "general legislation of the public policy of the state as a whole" would be to make the scope of municipal "services and functions" subject to curtailment by legislative declaration, and state statute the master of the constitution. The ambit of "general legislation involving the public policy of the state as a whole," Flower Valley, 528 S.W.2d at 754, must end where charter counties' constitutional authority over municipal "functions and services" begins. Because the mediation program was an exercise of County's authority regarding municipal services and functions, the prohibition of section 443.454 is simply not applicable. Thus, the advent of section 443.454 does not moot this case. While it is true that County states it will no longer seek to enforce the mediation ordinance, County has given no indication to this Court that the ordinance will be repealed. A cause of action is moot when rendering judgment "would not have any practical effect upon any then existing controversy," Reynolds v. City of Valley Park, 254 S.W.3d 264, 266 (Mo. App. E.D. 2008) (quoting Precision Investments, L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007)), and our decision would be "disconnected from the granting of actual relief," id. (quoting State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo. App. W.D. 1998)). As long
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as the ordinance remains in effect, County is free to resume enforcement at any time. Bankers request that we invalidate the ordinance, thereby ensuring it will never be resuscitated. By dismissing this case as moot, the majority leaves the ordinance in limbo, and denies Bankers a resolution of the issue over which they brought suit. Even if, for the sake of argument, this case did become moot on the effective date of section 433.454, which is August 27, 2013, this Court "may consider the appeal if the case becomes moot after it has been argued and submitted." Friends of San Luis, Inc. v. Archdioceses of St. Louis, 312 S.W.3d 476, 484 (Mo. App. E.D. 2010). The parties in this case submitted their briefs and argued before this panel prior to the advent of section 433.454, therefore this Court is free to decide the appeal. In light of the major policy implications of this case—including a very real question as to the scope of charter county power under article VI, section 18(c), of the Missouri Constitution—I believe we should reach the merits of this appeal. For the foregoing reasons, I respectfully dissent.
______________________________ Lisa S. Van Amburg, Judge
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