The Hon. Owen M. Panner, United States District Judge for the District o f 1 Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1291EM

_____________ Lee Morgan; Norman Adkins; James * Bersen; Richard Sisak; Carl Knott; * Thomas Hansen; Gary Foley; Charles * Beel; Ellis Sandow; Herbert Bastian; * Vicki Anderson; Rick Shirley; * Benjamin Bull; Petra Beel, and others * similarly affected as a class, * * Appellants, * On Appeal from the * United States District Court v. * for the Eastern District * of Missouri. * City of Florissant, a municipal * corporation under the laws of the State * of Missouri; James Eagan, individually * and as Mayor of the City of * Florissant, Missouri, * * Appellees. *

___________ Submitted: June 11, 1998 Filed: June 29, 1998

___________ Be fore RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circui t Judges, and PANNER, District Judge. 1-2- ___________ RICHARD S. ARNOLD, Circuit Judge. “AreaWest,” an unincorporated area of St. Louis County, Missouri, wa s annexed into the City of Florissant, Missouri, following an election. Area Wes t resident s and voters who opposed the annexation brought suit against the City o f Florissant and its Mayor, seeking a declaration that Mo. Ann. Stat. § 72.407.1(2) (West 1998), a state law providing fo r annexation elections, is unconstitutional. The District Court dismissed the claim. We affirm.
I.
The City o f Florissant is a municipal corporation located in St. Louis County , Missouri. In April, 1996, the City submitted a proposal to the Boundary Commission of St. Louis County for annexation of an unincorporated portion of the county referred to as Are a West, along with two other unincorporated areas. The Boundar y Commis sionapproved the annexation proposal, and pursuant to Mo. Ann. Stat

. § 72.4 07.1(2), ordered an election putting the question of the proposed annexation to the voters of the City, Area West, and the two other unincorporated areas. Mo. Ann. Stat. § 72.407.1(2) provides in pertinent part: [I]f th e [boundary] commission approves a proposed boundary chang e co ntaining one or more municipalities and at least one unincorporate d area which is classified as an unin corporated pocket, such proposal shall be adopted if a separate majority of the votes cast on the question in each municipality and a majority of votes cast in the whole municipality which wou ld result from the boundary change are in favor of the boundary change

. . .. As used in this subdivision, the term “unincorporate d poc ket” means an unincorporated territory with an average residentia l density in excess of one dwelling per three acres, and which has a population of less than five thousand and which is accessible by public orThe Honorable Charles A. Shaw, United States District Judge for the Eastern 2 District of Missouri. -3- pr ivate roadway only from incorporated jurisdictions and/or anothe r county. Are aWest and one of the other unincorporated areas were classified a s unincorporated pockets. A n election was held in April, 1997, and the annexation was approved by a m ajority of the voters in the city, defeated by a majority of voters i n Area West an d the other two unincorporated areas, but approved by a majority of the voters in the entire municipality which would result from the proposed boundary cha nge. Thus, annexation of the two unincorporated pockets was approved pursuant to the statute, while annexation of the unincorporated area that was not a pocket was defeated. Registered voters residing in Area West brought suit under 42 U.S.C. §1983 in the District Court, contending that Mo. Ann. Stat. § 72.407.1(2) violates thei r 2 Fourteenth Amendment equal protection rights because the votin g procedure permitting annexati on, even if a majority in an unincorporated area opposes it, impermissibl y dilu tes and diminishes the effect of their votes. The City moved to dismiss th e complaint, and the plaintiffs moved for summary judg ment. The District Court granted the City’ s motion to dismiss, determining that the statute is constitutionally soun d because it is rationally related to a legitimate governmental interest.
II. The plaintiff residents contend that the District Court erred in applying a rationalbasis standard of review in determining the constitutionality of the statute, and assert that it should have been examined under a strict-scrutiny standard. In advancing this argument, the plaintiffs rely on voting cases involving the diminution of representative government through impermissible legislative apportionment schemes or a complete-4-

denial of the vote

through imposition of improper voting criteria. See, e.g., Wesberry v. Sanders , 376 U.S. 1 (1964) (glaring discrepancies in a pportionment of congressional districts discriminated aga

inst voters in violation of the constitutional requirement that Representatives be chosen by people of the s everal states); Kramer v. Union Free Sch. Dist. No. 15 , 395 U.S. 621 (1969) (granting franchise in school district election only to property owners or lessors and parents of school children fails strict scrutiny).
In contra st to the cases relied on by the plaintiffs, the law governing th e annexa tionat issue is correctly reviewed for a rational relationship to a legitimat e gover nmental interest. There is a noteworthy difference in voting jurisprudenc e between election laws providing for the drawing and redrawing of state politica l subdivi sions, and laws involving the choice of legislative representatives or imposing restric tions on voters based on characteristics such as wealth or race. The forme r subset of ca ses warrants review for a rational basis, while the latter affects mor e significant rights and constitutional concerns, meriting strict-scrutiny review. Se e Hunterv. Ci ty of Pittsburgh , 207 U.S. 161 (1907) (states have great latitude i n structuring political subdivisions); St. Louis County, Mo. v . City of Town and Country , 590 F. Supp. 731 (E.D. Mo. 1984) (challenge to voting scheme governing annexation elec tion subject to rational-basis review); Murphy v. Kansas City, Mo. , 347 F. Supp. 837 (W.D. Mo. 1972) (legislative classificati ons of areas in annexation process upheld on rati onal-basis review, including a provision altogether denying residents of th e annexe d territory the right to vote). We agree with the District Court that plaintif f residents have failed to allege that Mo. Ann. Stat. § 72.407.1(2) implicates the type of conc ern worthy of strict-scrutiny review, or that the law is not rationally related to a legitimate governmen

tal interest. “Pockets,” as defined in the statute, present distinct practical problems of governance, and it is not irrational for the Legislat ure to recognize them.
Affirmed.-5-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.