Opinion
No. ED86804
Filed: October 3, 2006
Appeal from the Circuit Court of St. Louis County, Honorable Steven Ohmer. James A. Stemmler, St. Louis, Mo, for Appellant.
St. Louis University, Richard B. Walsh, Jr., Winthrop B. Reed, Stephen M. Durbin, St. Louis, Mo, for Respondent.
City of St. Louis, Mark Lawson, St. Louis, Mo, for Respondent.
Before: Glenn A. Norton, Chief Judge, Lawrence E. Mooney, Judge, Roy L. Richter, Judge.
The Masonic Temple Association of St. Louis and related parties ("Temple Parties") appeal the trial court's grant of summary judgment for Saint Louis University ("SLU") and the City of St. Louis ("City"). The trial court found that the three tax incremental financing ("TIF") ordinances challenged were valid under the Missouri Constitution. We would affirm the trial court's judgment; however, in light of the general interest and importance of the issues involved, we transfer the case to the Missouri Supreme Court, pursuant to Rule 83.02.
Background
SLU initiated design and construction planning for a 13,000 seat arena to be used for sporting events, graduation ceremonies and other secular uses. To finance a portion of this redevelopment project, SLU sought the benefit of Missouri State Increment Financing under the Real Property Tax Increment Allocation Redevelopment Act, Section 99.800 et seq. RSMo 2000. The purpose of the act is to encourage urban renewal by redeveloping blighted areas with the assistance of tax abatements. The City enacted a number of ordinances to establish Missouri TIF assistance for the SLU redevelopment project.
The ordinance at issue here, Ordinance #65703, provided that all reasonable or necessary costs incurred in redevelopment would be paid by tax increment revenues generated within the redevelopment area. The City could pledge such tax increment revenues to special funds established for particular redevelopment areas, including SLU. Specifically, percentages of tax revenues and payments in lieu of taxes would ultimately be funneled to the developer to pay for the development costs incurred.
The City also enacted two other TIF ordinances. Ordinance # 65857 approved a tax increment financing redevelopment agreement for the Grand Redevelopment area. Ordinance # 65858 prescribed the form and details of payment.
Temple Parties brought a declaratory judgment action in the United States District Court for the Eastern District of Missouri against the City and others; SLU was not a party in the federal case. In response, SLU filed a petition for declaratory judgment in the Circuit Court of the City of St. Louis against Temple Parties requesting a declaration that the TIF ordinances did not violate Article IX, Section 8 and Article I, Section 7 of the Missouri Constitution. Temple Parties filed counterclaims against SLU and the City, seeking a declaration that the ordinances violated the above provisions of the Missouri Constitution and the Establishment Clause of the United States Constitution. SLU and the City each moved to dismiss and for summary judgment. The trial court granted summary judgment in favor of SLU and the City, declaring that the TIF ordinances did not violate any provisions of the Missouri or U.S. Constitution, or any Missouri statute or U.S. law. Temple Parties appeal.
Although the judgment of the federal court is not part of the record on appeal, both parties state in their briefs that the federal case was dismissed by the federal court on the basis of comity and abstention.
Discussion
We review a grant of summary judgment de novo. ITT Commercial Finance v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. Id. Summary judgment is appropriate only when the record demonstrates that there are no genuine disputes regarding material facts, and that the moving party is entitled to judgment as a matter of law. Id. The movant bears the burden of establishing both a legal right to judgment and the absence of any genuine issue material fact required to support the claimed right to judgment. Id. at 376-380.
Temple Parties present six points on appeal. However, these points may be grouped into two general arguments. Temple Parties first argue that the trial court erred by granting summary judgment because the ordinances enabling TIF funding for SLU's redevelopment project were unconstitutional in that they constituted financial aid to a university under the control of a religious doctrine or creed in contravention of the Missouri Constitution. Next, Temple Parties argue that summary judgment was improper because the City's ordinances violated the federal Establishment Clause of the United States Constitution.
We first address Temple Parties' argument regarding the Missouri Constitution. Temple Parties contends the trial court erred by granting summary judgment because the City's grant of TIF funding to SLU violated the Missouri Constitution, Article IX, Section 8. We disagree.
The Constitution of the state of Missouri is not a grant of power like the federal constitution but is a limitation on legislative power. Menorah Medical Ctr. v. Health Educ. Facilities Auth., 584 S.W.2d 73, 77 (Mo. banc 1979). Unless restrained by the state constitution, the state's legislative power is practically absolute. Id. We presume legislation is constitutional. Tax Increment Fin. Comm'n of Kansas City v. J.E. Dunn Constr. Co., Inc., 781 S.W.2d 70, 74 (Mo. banc 1989). A legislative enactment will not be held unconstitutional unless it clearly contravenes a constitutional provision. State ex rel. Missouri State Bd. of Registration for the Healing Arts v. Southworth, 704 S.W.2d 219, 223 (Mo. banc 1986).
Article IX, Section 8 of the Missouri Constitution states that no "city . . . shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church sectarian purpose, or to help to support or sustain any private or public school . . . [or] university . . . controlled by any religious creed, church or sectarian denomination. . . ." At issue here is whether SLU is a university controlled by a religious creed, church or sectarian denomination as referenced in the Missouri Constitution. We would hold that it is not.
This proposed holding obviates the need to address Temple Parties' argument regarding Article I, Section 7 of the Missouri Constitution. Article I, Section 7 prohibits the state from aiding a religion. Because we would find that SLU is not controlled by a religious creed, it cannot qualify as an extension of a religion for purposes of Article I, Section 7.
In statutory construction, "undefined words are given their plain and ordinary meaning as found in the dictionary in order to ascertain the intent of lawmakers." Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). The Constitution does not define the term "creed." In the dictionary, it is defined as "a formulation or system of religious faith." Webster's Third New Int'l Dictionary 533 (2002). It could easily be argued, as Temple Parties do, that SLU, a university associated with a religious order, is necessarily under the direction of that religious order. This simplistic reasoning has been long rejected by the Supreme Court of the United States. Bradfield v. Roberts, 175 U.S. 291, 298 (1899) (noting that a secular hospital corporation does not become a religious institution simply because its members are part of a monastic order or sisterhood of the Roman Catholic Church). A deeper analysis is required.
Although we would next turn to prior case law, Missouri courts have yet to construe the definition of a "university . . . controlled by a religious creed" as set forth in Article IX, Section 8. In light of the absence of case law from our jurisdiction, we look to jurisdictions with similarly restrictive establishment clause principles. New York has addressed this very issue. In College of New Rochelle v. Nyquist, 326 N.Y.S.2d 765 (A.D. 1971), the Appellate Division considered whether the College of New Rochelle was "controlled or directed by a religious denomination" and whether state aid to the college was therefore prohibited under Article XI, Section 3 of the New York Constitution. Id. at 771-72. The Court examined the university's structure, noting that the university described itself as "under Catholic auspices," "committed to the Christian tradition," and was administered by the Community of Ursuline Nuns who were governed in matters by their faith and religion.Id. at 771. The Court nevertheless found that "such a situation cannot be said to have caused religion to so `pervade' the atmosphere of the college as to effectuate religious control or direction by a religious denomination." Id. We would similarly apply the principles of Nyquist here.
"[T]he state nor any subdivision thereof, shall use its property or credit or any public money . . . in aid or maintenance . . . of any school or institution of learning wholly or in part under the control or direction of any religious denomination . . ." N.Y. Const. art. XI, Section 3.
In addition, Missouri law indicates that the existence of an independent board strengthens the secular identity of a school. In Americans United v. Rogers, 538 S.W.2d 711 (Mo. banc 1976), the state established a financial assistance program for college students in which funds were to be used at public or approved private institutions. Id. at 721. After reviewing each private institution, a state agency granted approval only if a private institution was governed by an independent board. Id. at 714. The Supreme Court of Missouri held that the program was constitutional, noting the significance of independent governance. "[T]hose schools statutorily qualified [having an independent board] would not be subjected to that `control' prohibited by Article IX, Section 8, of the Missouri Constitution." Id. at 721.
Here, although SLU maintains a Jesuit heritage, it is controlled and operated by an independent, lay board of trustees. In fact, the SLU by-laws indicate that the Board of Trustees must consist of 25 to 55 members, with 6 to 12 members belonging to the Society of Jesus. Currently, of 42 trustees, 9 are Jesuit. Only a majority vote at a meeting where a majority of the trustees are present authorizes corporate action by SLU.
Further, the Missouri Supreme Court has previously examined SLU's status. In Menorah Medical Center, the Court held that a funding act for financing capital improvements or refinancing an existing indebtedness did not violate any church-state provisions contained in the Missouri Constitution even though SLU was originally founded by Jesuits and two-thirds of its then board members were of the Catholic faith. 584 S.W.2d at 77. We similarly fail to see SLU's religious affiliation as a bar to the constitutionality of the City's granting TIF funding to SLU.
We recognize that Menorah Medical was a plurality opinion and, therefore view it as persuasive, not binding authority.
We note that Temple Parties' reliance on Paster v. Tussey, 512 S.W.2d 97 (Mo. banc 1974) and Harfst v. Hoegen, 163 S.W.2d 609 (Mo. banc 1942) is misplaced. The Court in both Paster andHarfst considered the constitutionality of state aid to private elementary and secondary schools, not a university like the one at issue here.
In the university education context, we would find that the Missouri Constitution's language, "controlled by any religious creed, "cannot describe simply any religiously affiliated institution. Such an interpretation would render the definition so broad as to exclude government assistance to any facility of higher education tangentially related to a denomination. We instead construe Article IX, Section 8 to prohibit State aid only when an institution is controlled in such a way that religious authorities propagate and advance their religion through school operation. Nyquist, 326 N.Y.S.2d at 771. Association with a denomination or sharing of administrative control with a religion does not constitute religious control. Id. Therefore, we would interpret the language "controlled by any religious creed" to indicate those institutions that inculcate a doctrine and faith of a denomination, not those institutions that merely identify with a religious heritage.
Having determined that SLU is not a university controlled by a religious creed, we briefly review SLU's planned use for TIF funding. We find that the City's grant of TIF benefits to SLU is for a valid public and secular purpose. The City's Board of Aldermen specifically designated purposes for the TIF funds that are entirely secular, including development of theaters, museums, parking, green space, education and housing projects, retail and mixed-use establishments, historic rehabilitation and arena projects. Moreover, the funds allocated to SLU are earmarked for the construction of a sports arena, a secular facility.
We have fully addressed Temple Parties' argument regarding the Missouri Constitution and recognize that the Missouri Constitution "is more `restrictive' than the First Amendment to the United States Constitution in prohibiting expenditures of public funds in a manner tending to erode an absolute separation of church and state," Americans United, 538 S.W.2d at 720. We, therefore, choose not to review Temple Parties' argument based on the Establishment Clause of the United States Constitution.
Conclusion
We find the City's grant of TIF funds to SLU does not violate Establishment Clause principles of the Missouri Constitution. SLU, although a university with a Jesuit tradition, is not a university "controlled by a religious creed" and is consequently entitled to judgment as a matter of law. Therefore, although we would affirm the judgment below based on the Missouri Constitution, in light of the general interest and importance of the issues presented here we transfer this case to the Missouri Supreme Court pursuant to Rule 83.02.
Glenn A. Norton, C.J., Concurs
Lawrence E. Mooney, J., Concurs in Separate Opinion
CONCURRING OPINION
I concur in the decision to transfer this cause to the Supreme Court. However, I dissent from the holding, entered without a trial, that Saint Louis University is entitled to receive public funds despite the Missouri Constitution's strict prohibition of governmental aid to religious institutions. This holding ignores the requirements for summary judgment and misconstrues Missouri's constitutional prohibition.
This case comes to us as an appeal of a grant of summary judgment. As such, all inferences are to be drawn against the movant, Saint Louis University. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Saint Louis University's by-laws provide that it shall be publicly identified as a Catholic and Jesuit university and shall be governed in accordance with that identity. I would infer from such that, plainly, Saint Louis University is a Catholic university. These are, after all, the dictates of the university's governing documents and not mere hollow words. Nor is this merely a matter of the University's religious affiliation, association, or tradition. Rather, it is a matter of the University's identity and governance. Yet the trial court held, despite these by-laws, that there was no genuine dispute as to whether the university is controlled by the Catholic creed. It hardly seems that inferences were drawn against Saint Louis University. Indeed, I have found no other Missouri case exploring the complex question of state support of a religious educational institution that was resolved without a trial on the merits.
Article IX, Section 8 of Missouri's Constitution provides:
Prohibition of public aid for religious purposes and institutions. — Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.
Among its other injunctions, this section prohibits a city from ever paying from any public fund anything to help or support a university controlled by a religious creed. A few remarks are in order.
First, let us remember that this is Missouri's Constitution, not New York's Constitution and not the United States Constitution. As such, it is for the Missouri Supreme Court, and not other courts, to declare its meaning. Second, let us recall that the Missouri Supreme Court has already announced that "[t]he constitutional policy of our State has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well. Public money, coming from taxpayers of every denomination, may not be used for the help of any religious sect in education or otherwise." Harfst v. Hoegen, 163 S.W.2d 609, 614 (Mo. 1941) (adopted en banc) (per curiam). Third, the Missouri Supreme Court has further held that "the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are not only more explicit but more restrictive than the Establishment Clause of the United States Constitution." Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. banc 1974); see also Americans United v. Rogers, 538 S.W.2d 711, 720 (Mo. banc 1976) (plurality opinion).
The New York Constitution prohibits state aid to schools "under the control or direction of any religious denomination." N.Y. Const. art. XI, section 3. New York's prohibition is not as broad as Missouri's prohibition against aid to schools "controlled by any religious creed." Mo. Const. art. IX, section 8. A school, which is not controlled or directed by a denomination, might still be controlled by its creed.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the United States Supreme Court set forth a three-pronged test for analyzing challenges under the Establishment Clause of the First Amendment to the United States Constitution. Missouri courts have at times applied the Lemon test to challenges under the Missouri Constitution, but such application lacks support in the law, logic, and history. Legally, authority for application of the Lemon test to Missouri constitutional challenges is weak. In Menorah Medical Center v. Health Educational Facilities Authority, 584 S.W.2d 73, 86-87 (Mo. banc 1979) (plurality opinion), the plurality cited the Court's "recognition" of the Lemon test in Americans United v. Rogers, 538 S.W.2d 711 (Mo. banc 1976) (plurality opinion), and applied the Lemon test to the church-state challenges under the Missouri Constitution. Americans United, however, discussed and applied the Lemon test in its analysis of the federal constitutional challenge. Americans United, 538 S.W.2d at 716-18. Also, in examining the Missouri constitutional challenge, the Americans United Court conceded that Missouri's Constitution "is more `restrictive' than the First Amendment to the United States Constitution." Id. at 720. The opinion then devotes one sentence to the second prong of the Lemon test, and the first and third prongs are unaddressed. Id. at 721. Logically, as noted previously, Missouri's constitutional prohibition of public aid for religious purposes and institutions has been held to be both more explicit and more restrictive than the First Amendment to the United States Constitution. Id. at 720; Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. banc 1974). Further, Article IX, Section 8 of the Missouri Constitution does not merely prohibit state establishment of religion as the First Amendment to the United States Constitution does; rather, the Missouri Constitution broadly prohibits public aid for religious purposes and institutions. Because Missouri's constitutional prohibition is of a different character than the federal constitutional prohibition, it is illogical to analyze Missouri's constitutional prohibition by means of the federal Lemon test. Historically, there would have been little impetus for the enactment in 1875 of Article IX, Section 8 (then known as Article XI, Section 11) to the Missouri Constitution if it were merely coextensive with the Establishment Clause of the First Amendment to the United States Constitution.
The University proposes, in reliance on New York law as declared by one of its intermediate appellate courts, that Missouri's Constitution should be construed to only prohibit state aid when an institution is controlled in such a way that religious authorities propagate and advance their religion through school operation. And the University cites to the secular character of the proposed arena and the public benefits of the proposal.
It should be noted that some religions do not engage in proselytization. How such religions might fare under the University's interpretation is unclear.
I, on the other hand, propose a markedly different interpretation of Missouri's Constitution — it means what it says. There shall be no governmental aid to schools controlled by a religious creed. Although this might not be in accord with New York law, it is entirely consistent with the Missouri Supreme Court's unanimous reasoning. Again, "[t]he constitutional policy of our State has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well. Public money, coming from taxpayers of every denomination, may not be used for the help of any religious sect in education or otherwise." Harfst, 163 S.W.2d at 614. And that constitutional policy is not restricted to elementary and secondary schools. To the contrary, the Missouri Constitution explicitly bars a university from such aid.
Saint Louis University mistakenly places great reliance on its presently lay board of trustees in its quest for public funds. Yet the Missouri Supreme Court has previously rejected reliance on nominal supervision by a board if it is but an indirect means of accomplishing what the Constitution forbids. Id. at 613. As noted in Americans United, a board might be fiercely independent, but still operate a sectarian institution. Americans United, 538 S.W.2d at 725 (Seiler, J., dissenting). Missouri courts have thus rightly avoided exalting form over substance. Instead, Missouri courts have judged whether an institution was sectarian by considering all the facts and circumstances, such as the location of the institution on property owned by a religious sect, the housing of members of a religious order within the institution, the adherence to religious doctrine, the display of religious emblems, the role of members of religious orders within the institution, the conduct of religious services, the provision of religious instruction, the religious affiliation of the teaching staff and the student body, and the observance of religious holidays. Berghorn v. Reorganized School Dist. No. 8, 260 S.W.2d 573, 583-84 (Mo. 1953). Of course, consideration of all the facts and circumstances here would require a trial on the merits, and not mere consideration of a remarkably thin summary-judgment record focused on its presently lay governing board. It is true that religiously affiliated institutions have often abandoned or weakened their prior affiliation to such an extent that they may no longer be controlled by a religious creed. And, if such an institution is no longer controlled by a religious creed, church, or sectarian denomination, it might receive public funds. Law is written in black and white, but life is lived in shades of gray. If indeed it were credibly established at trial that Saint Louis University, despite its governing documents, is no longer controlled by the Catholic creed, it might build its arena with public funds. I hope our Supreme Court orders a trial on the merits of that interesting question.
The record before us indicates that the Saint Louis University by-laws mandate a board of trustees consisting of between 25 and 55 members, between six and twelve of whom must be members of the Society of Jesus. The current board has 42 members, nine of whom — or 21 percent — are Jesuits. The record does not even disclose the precise religious composition of the remainder of the current board. University president Father Lawrence Biondi testified at his deposition that the current board consists of "people of different faiths, there are Protestants, there are Jews, and I suspect there are one or two [members] of no particular religion." Third-party defendant Vincent Schoemehl testified at deposition that he understood the Saint Louis University board of trustees had transitioned from a religious board to a lay board, perhaps in the 1960s. In 1979 the Missouri Supreme Court noted that, "Today, two-thirds of the [Saint Louis University] board members are of the Catholic faith." Menorah Med. Ctr. v. Health Educ. Facilities Auth., 584 S.W.2d 73, 77 (Mo. banc 1979) (plurality opinion).