Chimney Rock subdivision referendum case to be refiled 

A hearing on a motion that would compel the Springfield city clerk to review a petition for a ballot issue was heard today. 

Judge Joshua Christensen listened to arguments in under a half-hour today in the Sixth Division of Greene County Consolidated Circuit Courts.  

The case involves a preliminary plat in the Galloway Village neighborhood to make way for the Chimney Rock subdivision. Dan Clark, who lives at 3108 Arcadia Ave. in a cul-de-sac abutting the undeveloped site, filed a complaint to see a writ of mandamus and/or a declaratory judgment against City Clerk Anita Cotter, acting in her official role, after she rejected a referendum petition that sought to undo Springfield City Council’s acceptance of the preliminary plat. 

Cotter rejected the petition and said in a letter to petitioners, including Clark, that a proposed repeal of the council-approved preliminary plat is not subject to the referendum process, according to past Springfield Business Journal reporting. 

Debate in the courtroom today centered on the way in which Clark’s petition was filed, with Christopher Hoeman, chief litigator in the Springfield city attorney’s office, arguing that a writ of mandamus and a request for declaratory judgment are incompatible. 

“Mandamus and declaratory judgment are two distinct causes of action governed by completely distinct procedural rules,” he said. “I don’t think it’s clear from the pleading what they’re asking for – if they’re attempting to plead an alternative, if they’re seeking both – and so I think they need to rectify that before we even know if a preliminary writ directing us to answer is appropriate.” 

Hoeman said the attorney for relator Clark needs to “pick a lane” – either a writ of mandamus or a declaratory judgment – to move forward. 

Attorney Kirk Kaczmarek of Evans and Dixon Law Firm, who represents Clark, said he disagrees. When asked by the judge what part of Hoeman’s argument he disagreed with, he replied, “All of it – every bit of it.” 

Kaczmarek had filed the motion at the heart of today’s hearing. It sought to quash the summons issued by the court by maintaining the summons was issued in error. 

“The court’s issuance of the summons, and failure to issue or deny preliminary order in mandamus, may have the unintended result of preventing relator from obtaining the relief sought in the petition,” Kaczmarek’s motion stated. 

Judge Christensen added a wrinkle to the debate by noting that Greene County is a pilot county for a new auto case acceptance system, and the case was selected as a declaratory judgment when it was filed, triggering the issuing of a summons. 

Kaczmarek, while disagreeing with the position that a writ of mandamus and a petition for declaratory judgment may not be filed together, nevertheless offered to separate the two and withdraw the declaratory judgment request. Hoeman said he would need more time to respond to the amended action. 

Kaczmarek said there is a need to move quickly on the matter, but Hoeman objected. 

“I don’t see what the big rush is,” Hoeman said. “The end outcome if they are successful will be to order the clerk to determine if it is a sufficient referendum petition.” 

From there, the matter can go to council for possible repeal or be submitted to city voters, and there’s not an election available in the coming months for the latter option. 

Kaczmarek responded that an election is always coming up. The next one is the general election in November. 

Christensen said he would allow the petitioner to file an amended petition for writ of mandamus, which will come immediately to the court’s attention for a prompt ruling. Kaczmarek said he would file that. 

A writ of mandamus is a legal order for a governmental entity to perform an act it is required to do, according to Ballotpedia.  

Council voted in favor of authorizing the preliminary plat on Feb. 10 by an 8-1 vote, with Councilmember Craig Hosmer accurately predicting the matter would end up in court and casting the lone “no” vote. 

Cotter rejected the referendum petition with a March 19 letter telling petitioners that the act at the heart of their petition was administrative in nature, and administrative acts are not subject to referendum.  

The case was filed on May 2, and on May 15, an order for a change of judge, from Derek Ankrom to Christensen, was filed by Ankrom.