Before this Court is the consolidated appeal of the City of Kansas City and the Union Station Assistance Corporation, both of whom appeal the trial court’s issuance of a peremptory writ of mandamus on October 13, 1996. In the writ order, the court directed the City to take the steps necessary to cause the initiative proposed by Respondents to be placed on the November 5, 1996 ballot. Finding that the controversy is moot and does not fall within the recognized exceptions to the rule demanding dismissal of moot cases, we dismiss the consolidated appeal of City and USAC and vacate the trial court’s judgment.
Factual Background
The present case arose from the prolonged effort to restore Kansas City’s historic Union Station. In the 1970s, the City of Kansas City (“City”) and Trizec Corporation entered into a contract to redevelop Union Station. Having become dissatisfied with Trizec’s performance by 1988, the City instituted a suit to recover damages for Trizec’s alleged failure to perform its obligations under the redevelopment contract. On January 6, 1994, the City, acting through the City Council, passed Ordinance 940028, which authorized the City Attorney to execute a settlement agreement reached in the Trizec litigation. The terms
The Agreement was executed on June 28, 1994. USAC agreed to accept the terms of the settlement agreement between City and Trizec. The City and USAC agreed that USAC would be responsible for devising design, construction, and funding plans for the project. These plans were to be submitted to a designated agent of the City for approval. The City also gave USAC complete and exclusive control of the work so long as the Agreement remained in effect.
On April 29, 1994, Respondent Clay Chas-tain brought an action in Jackson County Circuit Court seeking a determination that Ordinance 940028 was illegal and praying for injunctive relief, including a temporary restraining order (“TRO”) to prevent implementation of the terms of the ordinance. On May 11,1994, the trial court denied the TRO and dismissed the action with prejudice.
Respondents then commenced an effort to put before the voters of Kansas City a new ordinance that would have extended the City’s 1/2 cent sales tax for five years beginning on January 1, 2001, and would have provided the tax revenue exclusively to the Liberty Memorial and the Union Station redevelopment efforts. Because the full effect of the text of the proposed ordinance was disputed at trial, we allow the proposed ordinance to speak for itself:
Shall the City of Kansas City, Missouri continue to impose a city sales tax of one half percent, effective for five years from January 1, 2001 through December 31, 2005, to be used solely for the restoration of Liberty Memorial as a World War I museum and memorial and Union Station as a transportation and science center, which shall include preserving completely intact the Head House, East Wing, West Wing and North Wing of the Union Station, with 25% of the sales tax proceeds each year to be used for Liberty Memorial restoration and the remaining 75% of the sales tax proceeds each year to be used for Union Station restoration, including use of the sales tax proceeds to retire bonded indebtedness whether incurred before or after the effective date of the sales tax?
The Respondents submitted petitions containing the signatures of 4,670 registered Kansas City voters in favor of placing the proposal on the August 1995 ballot to the City Clerk. Because this number constituted more than 5% of the voters who voted in the most recent mayoral election, as required by the Kansas City Charter for ballot initiatives, the Clerk certified the petitions as being sufficient. The Charter allows the City Council 60 days to study the proposed initiative before it must pass the proposed initiative in its original or amended form or place the initiative on the ballot. The City Council failed to act before the expiration of the 60-day period, which extended beyond the August 1995 election date.
On August 31, 1995, the Respondents filed suit in the Circuit Court of Jackson County against the City, the Mayor of Kansas City, various members of the City Council, the City Clerk, and several board of election commissioners responsible for conducting city elections. The Respondents sought (1) a writ of mandamus ordering the City to place the proposal on the November 7,1995, ballot, and (2) damages from the City and the Council members under 42 U.S.C. § 1983 for the alleged deprivation of the right to present the initiative to the voters.
The trial court held a hearing on September 6, 1995. On September 13, 1995, the court issued an order requiring the City to place the proposal on the August 1996 ballot. The defendants moved for reconsideration of the order, and USAC moved to intervene. The court granted USAC’s motion for intervention on February 8, 1996. In its first amended answer of February 21, 1996, USAC filed a cross-claim against the City, alleging anticipatory breach of contract and praying for specific performance of the contract.
The Respondents subsequently commenced a second petition drive to get a substantially similar ordinance on the November 4, 1997 ballot. 1 Their efforts were successful, and the City Council voted to place both the earlier and the later proposed ordinances, which were practically identical, on the November 1997 ballot. Fearing voter confusion from the placement of two almost identical proposed ordinances on the same ballot, Respondents sought to eliminate the first proposed ordinance so that only the second would appear on the ballot for November of 1997. City and Respondents executed an agreement on September 17, 1997 containing the following relevant language:
The Committee of Petitioners has determined that placement of the first matter on the November 4, 1997 ballot is not desired now or in the future. The City of Kansas City has determined that placement on the ballot is not necessary if the Committee of petitioners will not require placement of the first matter before the voters should the Missouri Court of Appeals find that the matter should be presented to the voters.
Both parties agreed that the removal of the first proposed ordinance from the November 1997 ballot was done “with no intention to waive any claim or defense the parties may have relating to any legal issue now or in the future before a court.”
On December 19, 1997, Respondents refiled their damage claim against City and members of the City Council in Jackson County Circuit Court. Respondents allege that the defendants breached their duty to place the ordinance on the ballot in 1995 and seek compensatory damages, punitive damages, and attorney fees. That claim was still pending as of the submission of the present appeal.
In its appeal, City raises four allegations of trial court error: (1) the proposed ordinance should have been required to meet the more stringent procedural requirements for a referendum rather than the easier requirements for an initiative; (2) the proposed ordinance contained administrative issues that may not be submitted to voters in an initiative; (3) the proposed ordinance was facially illegal in that it impaired USAC’s vested contract rights under Ordinance 940028 and the Agreement; and (4) the statutory deadline
USAC’s original appeal brief raised many of the same arguments while also citing additional alleged errors the trial court made in issuing the peremptory writ of mandamus. As its final point of error, USAC contends that the trial court erred in dismissing USAC’s cross-claim against the City for anticipatory breach of contract. After filing its original brief, however, USAC filed a supplemental brief praying this court for dismissal of the appeal as moot. USAC cites the agreement entered into by the City and Respondents as to the November 1997 ballot as the event that mooted this appeal.
Mootness
The mootness of a controversy is a threshold question in any appellate review of that controversy. See
State ex rel. Kirkpatrick v. Board of Election Comm’rs of St. Louis County,
The trial court’s peremptory writ of mandamus required compliance by a specific date, November 5, 1996. Execution was stayed by supersedeas bond pending appeal. Therefore, with the passing of that specific date, the extraordinary relief granted by the trial court had no practical effect on the controversy between the parties. The writ, for all intents and purposes, expired.
Ordinarily, an expired order presents a moot subject for appellate review. However, we are not certain that the passing of the date specified in the order alone mooted this appeal. A peremptory writ of mandamus has the character of an execution and a judgment.
State ex rel. Brooks v. Crain,
The City and the Respondents Mooted the Appeal By Their Agreement
Later events brought to the attention of this court by City and USAC prior to submission cause us to conclude that a continuation of this controversy is extremely unlikely. Because the trial court’s October, 1996, writ of mandamus was stayed pending appeal, there was little if any prospect of the proposed ordinance being placed on the ballot without the order being affirmed on appeal. In the meantime, Respondents opted to circulate a new petition to place substantially the same ordinance on the ballot in 1997. When the City Council voted to place both proposed ordinances on the November, 1997, ballot, Respondents objected, fearing that both proposed ordinances would fail due to voter confusion over two distinct, yet substantially identical, ordinances appearing on the same ballot. The parties concluded an agreement to remove the first proposed Union Station ordinance (designated Ordinance 971236) from the November 1997 ballot, leaving the second proposed ordinance (designated Ordinance 971192) on the same ballot. Reading the language of that agreement in light of the circumstances as we understand them, we infer that the intention of the parties in removing the first of the two proposed Union Station ordinances from the November 4, 1997 ballot was to exchange the prospect of a confused and inconclusive vote on Respondents’ Union Station redevelopment plan for the prospect of a clear and conclusive vote on that plan. 4 The agreement was fulfilled, and the second proposed ordinance was rejected by the voters of Kansas City on November 4, 1997. The Respondents have no apparent desire to place their Union Station sales tax proposal before the voters again. This inference was confirmed by the concession made by Respondent’s attorney at oral argument that the case was now moot.
The Issue is One of Public Importance
The City urges this Court to decide this case due to the issue’s likelihood of recurrence. Appellate courts have the discretion to decide moot cases which present issues of public importance when those issues are likely to evade appellate review on their recurrence.
Missouri Cable Television Assoc’n,
The City wishes this court to construe the Kansas City Charter, most particularly the sections setting out the procedural requirements for the referendum and the initiative, §§ 426-29 (initiative), 430-34 (referendum). Under section 430 of the charter, notice of a referendum to repeal an ordinance must be given to the City Clerk within ten days of the enactment of that ordinance
The Issues May Be Reviewed When They Recur
We fail to see that any issue in this case is likely to evade review in any future controversy. The trial court issued the writ on October 3, 1996. A peremptory writ of mandamus is a final order and as such is appealable.
State ex rel. Selsor v. Grimshaw,
The Existence of the Separate Damages Action Does Not Create Jurisdiction to Decide the Merits
In another attempt to persuade the court to decide this moot appeal, the City
Disposition of the Trial Court’s Judgment
Having decided the appeal is moot, we now turn to the argument of USAC that this court should also vacate the trial court’s judgment. USAC does not claim that the case was moot when the trial court entered its judgment. Rather, USAC has expressed two other concerns with the Court allowing the trial court’s judgment to stand: (1) USAC will be bound by the judgment in any subsequent action that arises out of the proposed ordinance; and (2) the continued existence of a valid judgment ordering the proposed ordinance to be placed on the ballot creates uncertainty and interferes with USAC’s efforts to obtain financial support for the renovation of Union Station. City has not specifically requested vacation of the judgment below, preferring instead to seek a decision on the merits.
In disposing of cases that have become moot on appeal, Missouri courts have sometimes chosen simple dismissal of the appeal, and sometimes chosen to join the appeal with an order to vacate the lower court’s judgment. In
Fugel v. Becker,
While in subsequent cases simple dismissal appears to have been the more common method of disposal,
8
there are a few relatively recent cases where Missouri courts have gone further and vacated the lower court’s judgment.
See State ex rel. Antonio v. Bank of Lee’s Summit,
The Decision To Vacate Is Not Dependent On Lack Of Justicia-bility In The Trial Court
One conclusion is clear, however: the decision to vacate the trial court’s judgment does not depend on whether the controversy was justiciable when the trial court’s judgment was entered. In
Bank of Lee’s Summit,
there was no doubt that the trial court had the jurisdiction to enter the injunction appealed. The Missouri Supreme Court nevertheless vacated the trial court’s judgment and dismissed the appeal as moot.
Bank of Lee’s Summit,
The cases where appeals were dismissed as moot but judgments were not vacated fall into two categories. The first category are cases in which it is unclear whether any request was ever made to vacate. The second, and much smaller category, includes the cases in which requests to vacate were made but denied.
Extracting any lessons from the cases in the first category is problematic for two reasons. First, if the disposition of the trial court’s judgment was not discussed in those cases, it may have been because no request to vacate was made. If so, then the court quite understandably gave no thought to the issue of whether to vacate the trial court’s judgment. Moreover, even if the issue had been considered by the court sua sponte, failure to request vacation may have been regarded as an adequate reason to leave the trial court’s judgment intact, as is the federal practice (discussed below). Second, as we have previously noted, these cases are not consistently distinguishable with reference to any material fact from the cases where vacation was ordered. In
State ex. rel. Hooker v. City of St. Charles,
The few eases in which an order to vacate was sought but denied provide no meaningful guidance. In
Committee for Educ. Equality v. State,
Some lessons may be drawn from the preceding cases. Although the few cases where vacation was ordered were cases that had become moot for reasons beyond the control of the appellants, there were many cases where vacation was not ordered after those cases became moot for reasons outside of the control of appellants. The potential preclusion effect of a trial court judgment left intact does not seem to be a distinguishing characteristic.
Federal Practice: Munsingwear and Bonner Mall
While Missouri authority provides little guidance on this question, other authority vigorously advocates the approach whereby an appellate court dismisses the appeal as moot and vacates the lower court’s judgment.
The View That The Court Should Always Vacate The Trial Court Judgment
One of the justifications for vacating trial court judgments in moot cases pending appellate resolution begins with the premise that trial courts and appellate courts are designed to be interdependent components of the judicial system. 13A Wright, Miller & Cooper, Federal Practice § 3533.10, at 425. When a case becomes moot pending appellate resolution, to permit the lower court judgment to stand because an appeal, though timely brought, became nonjusticiable is to ignore the importance of appellate review in promoting the overall effectiveness of the judicial system.
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When an appellate court vacates a judgment that could not be reviewed for mootness pending appellate decision, “the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.”
Munsingwear,
Another set of reasons to vacate judgments may be classified as being equitable in nature. As the Supreme Court observed in
Bonner Mall Partnership,
the historical origins of vacatur are equitable.
The View That Vacatur Should Not Be Granted Without a Specific Request
Appellate review is necessary for the correction of trial errors and the promotion of
While we therefore decline to declare a “bright line” rule as to vacatur, we conclude that the normal practice should be to vacate the judgment when one or more parties requests such action in a case moot on appeal. Except where equity demands otherwise, a motion for vacation made by a party who had no control over the mooting event should be granted, at least as to that party. We have the power to vacate a judgment with regard to fewer than all adversely affected parties. This power has been recognized in Missouri law going back at least as early as
Neenan v. City of St. Joseph,
Because City, whose action in settling with Respondents mooted this appeal, has not requested vacation and because vacation as to USAC would not prejudice City, it would be appropriate to vacate the trial court judgment only as to USAC, in accordance with the analysis in
Bonner Mall Partnership,
Conclusion
Having concluded that this case is moot and does not fall within the public interest exception to the mootness doctrine, we dismiss the consolidated appeal of City and USAC and remand the case to the trial court with instructions to vacate its judgment.
EDWIN H. SMITH and ELLIS, JJ., concur.
Notes
. The second proposed ordinance read as follows:
Shall the City of Kansas City, Missouri, extend an existing one-half (1/2) percent city sales tax, effective for five years commencing from January 1, 2001, through December 31, 2005, to be used for the designated purpose of creating a multi-modal Public transportation centre inside Union Station, whose owner is the Union Station Assistance Corporation, and for restoration of Liberty Memorial as a World War I museum and memorial; with seventy-five (75) percent of the sales tax proceeds each year to be used to expand, construct, furnish and equip Union Station as a multi-modal public transportation centre and all things necessary or incidental to this project, and the remaining twenty-five (25) percent of the sales tax proceeds each year to be used for restoring Liberty Memorial, including use of the sales tax proceeds to retire bond indebtedness whether incurred before or after the effective date of the tax?
The second proposed ordinance differs from the first in only two significant respects: (1) the second ordinance does not require the sales tax proceeds to be used "solely” for the restoration of Union Station a "transportation and science center”, and (2) the second ordinance does not require that any part of the original structure of Union Station be preserved "completely intact.”
. If there had been no stay of the execution of the writ, there would be some theoretical possibility of contempt citations, and thus a decision in the issues raised on this appeal could have some practical significance in this controversy to the extent those issues implicated the jurisdiction of the trial court to issue the writ.
. The "distinctive characteristic of a declaratory judgment is that the declaration stands by itself, and no executory process follows as of course; and the action therefor is distinguished from other actions in that it does not seek execution or performance from the defendant or opposing parties.”
Gutensohn v. Kansas City S. Ry. Co.,
. The agreement contains Respondents' declaration that "placement of the first matter on the November 4, 1997 ballot is not desired now or in the future.” On its face, this sentence says nothing about the intention of Respondents as to the placement of the first ordinance on the ballot after November 4, 1997. This is consistent with the later paragraph in which the parties declare that they waive no claim or defense by agreeing on removal of the first ordinance. However, we believe that in the context of the whole agreement and the circumstances, Respondents expressed a desire never to press the matter of the first Union Station ordinance if they were permitted to go to the voters on the second proposed ordinance alone.
. Having cursorily reviewed the case law, we do not see that the sections of the Kansas City Charter setting out the different procedural requirements for a referendum and an initiative have been construed by Missouri courts to determine when each procedure is applicable. Missouri courts have decided this question under two other municipal charters: the City of Saint Louis charter in
State ex rel. St. Louis Regional Health Care Corp. v. Wamser,
.
See, e.g., State ex rel. City Council of Gladstone
v.
Yeaman,
.One issue [whether the trial court’s order violated § 115.125, RSMo Supp.1996 (effective June 13, 1996), which commands the officer or agency calling an election to notify the election authorities no later than the eighth Tuesday prior to an election of an issue to be placed on the ballot] was settled in
State ex rel. Referendum Petitioners Comm. v. Lasky,
.
See, e.g., State ex rel. Wilson v. Murray,
. The Missouri legislature created an unqualified right to appeal a final judgment in a civil cause. Section 512.020, RSMo 1994. We must conclude that the legislature intended the civil appeal as of right to be important in reducing erroneous outcomes in the adjudication of civil cases. See Section 512.160.2, RSMo 1994.