Friday, September 30, 2016

Boeving v. Kander

Opinion handed down September 20, 2016
            The Supreme Court of Missouri has held that the Missouri statutes governing the procedural requirements for an “official ballot title” cannot be construed as requiring the rejection of signatures in the event the official ballot title is amended through litigation after the petition has been properly approved and circulated for signatures.[1]  However, the court held that the substantives challenges regarding the possible effects of the constitutional amendment, if passed, are necessarily premature and will not be ruled on at this point.[2]

I.  Facts and Holding
             On November 20, 2015, Raise Your Hand for Kids (“Proponents”), a non-profit corporation and campaign committee, submitted an initiative petition sample sheet to the Missouri Secretary of State (“Secretary”), seeking to amend article IV of the Missouri Constitution by adding a new section, 54, as well as three subsections.[3]  On January 5, 2016, the Secretary certified the combination of his summary statement and the auditor’s fiscal note as the “official ballot title.”[4]  Following the statutory requirements of section 116.180, Proponents affixed this official ballot title to their initiative petition and began gathering signatures.[5]  On January 15, Mr. Boeving challenged the official ballot title (containing both the summary and fiscal note) that had been certified by the Secretary, pursuant to section 116.190 for Ballot Title Litigation. [6]  Proponents were granted intervention in the lawsuit.[7]  On May 7, 2016, Proponents submitted to the Secretary more than 330,000 signatures in support of Amendment 3.[8]  Each signature page contained the official ballot title that was certified by the Secretary on January 5, along with the full text of the amendment.[9]
             On May 19, the circuit court entered judgment in the Ballot Title Litigation, determining that the fiscal note summary was “unfair and insufficient” under section 116.190.3, but the court rejected the challenge to the summary statement portion.[10]  Proponents, along with the auditor, appealed the portion of the judgment pertaining to the fiscal note summary, and Mr. Boeving cross-appealed the denial of his challenge to the summary statement.[11]  The court of appeals reversed: it held the fiscal note summary was “fair and sufficient” but found that the summary statement portion was “unfair and insufficient.”[12]  On July 18, 2016, pursuant to section 116.190.4, the Secretary certified the new ballot title that included the corrections ordered by the court of appeals.[13]
            On August 9, 2016, the Secretary issued a Certificate of Sufficiency for Amendment 3 to be placed before Missouri voters on the November 8, 2016, election ballot.[14]  Opponents argue that because the amended ballot title from July 18 was not included on the initiative petitions that had been circulated for signatures, those signatures must be rejected.[15]  Proponents claim that if the statutes are construed in this matter, even though they fulfilled all the constitutional and statutory requirements at the time, it would be an unconstitutional infringement on their right to propose constitutional amendments by petition.[16]  Opponents raised additional claims that the proposed amendment violated the “single subject” and “single article” requirements in article III, section 50 and violated the mandate against “appropriation by initiative” of section 51.[17]
II.  Legal Background
            The Missouri Constitution gives citizens the power to propose and enact legislation and amendments to our constitution through the ballot initiative process.[18]  The constitution provides a bare-bones framework of requirements for initiative petitions, such as: the number of signatures needed (for constitutional amendments, eight percent of legal voters from each of two-thirds of Missouri’s congressional districts, and for statutes, five percent);[19] the deadline for filing (six months before the election);[20] the inclusion of an enacting clause;[21] the single subject rule for petitions;[22] and the restriction that constitutional amendments cannot contain more than one amended and revised or new article.[23]  Additionally, the legislature has enacted several statutes fleshing out the procedural details, such as the duties of the Secretary, the requirement of a summary statement, and the fiscal summary drafted by the state auditor.[24]
            This appeal comes from the judgment of the Circuit Court of Cole County.[25]  The Supreme Court of Missouri has exclusive appellate jurisdiction pursuant to article V, section 3 of the Missouri Constitution, because the appeal involves the potential constitutionality of Missouri statutes.[26]  Proponents claim if Opponents prevail on their point that the statutory provisions in Missouri Revised Statutes chapter 116 mandate the Secretary to reject the signatures gathered, those sections of chapter 116 are unenforceable because they would infringe upon Proponent’s constitutional right to propose amendments by initiative petition.[27]
III.  Instant Decision
            In the present case, the court affirmed the trial court’s determination that Proponents had submitted a sufficient number of valid signatures to be placed on the November 8 ballot.[28]  To support their argument that the Secretary must reject the signatures, Opponents relied on statutes governing the Ballot Title Litigation pursuant to section 116.190.[29]  Those provisions provide that the Secretary must certify ballot title language that has been certified by the court.[30]
            In rejecting the “harsh result advocated” by Opponents, the court pronounced that “[t]he courts of this state must zealously guard the power of the initiative petition process that the people expressly reserved themselves” in the constitution, and to that end the court noted, “[c]onstitutional and statutory provisions relative to initiative are liberally construed to make effective the people’s reservation of that power.”[31]  The court stated that there is no clear and unequivocal requirement in the statutes opponents relied upon, or elsewhere in chapter 116, that prohibits the Secretary from counting the signatures properly gathered and submitted before judgment is entered on Ballot Title Litigation.[32]  Having refused to construe these statutes as imposing such a result, the court did not need to address the issue of whether or not such a construction argued by Opponents would be unconstitutional. [33]
IV.  Comment
            The Supreme Court of Missouri’s instant decision is a resounding affirmation of the importance of protecting the people’s right to enact laws through ballot initiatives against well-financed special interests that are highly motivated to undermine the democratic process through dilatory litigation.  In recent years, the Show Me State has seen a swift uptick in the number of citizen-proposed ballot initiatives, as the process circumvents the legislative log-jam in the Missouri General Assembly.  The ballot initiative is a vehicle for grassroots political action guaranteed by the Missouri Constitution, and the measures are often aligned with counter-majoritarian movements that would not (or could not) get passed into law by the legislature. 
            While special interest groups may have hefty political clout in the super-majority-controlled legislature, citizen ballot initiatives are a wholly different battlefield; the only democratic route to derail an otherwise satisfactory initiative from making it to the ballot is by hauling the responsible parties into court.  These parties include the proponents, the Secretary, the state auditor, and anyone else who could have violated the statutory or constitutional provisions.  Not unpredictably, in the spring and summer leading up to a general election, ballot initiatives are often the target of hotly contested litigation by deep-pocketed special interest groups with high hopes of keeping the measures off the ballot and out of the hands of voters.
            Prior to an election, ballot initiatives are frequently challenged on both statutory and constitutional grounds.  Yet the constitution is the inviolable source that reserves this power to the people; therefore, unless there is an inescapable constitutional violation on the face of the text of the initiative, it would be premature to base a challenge on the substantive requirements before the initiative was passed.  On the other hand, there are over three dozen statutory provisions governing the procedural requirements at every juncture, which creates more potential for ambiguity and more fodder for litigation.  Because of the time frame – the entire process necessarily takes place within one year, as measures cannot be filed until the day after the previous general election – a successful challenge can effectively torpedo an initiative, because once litigated, the deadline for submitting signatures has typically come and gone.  Nevertheless, even though a statutory scheme may be riddled with (potential) snags and snares to fuel a lawsuit, the Missouri Constitution’s unequivocal reservation of this power to the people will ultimately prevail.  As a matter of statutory construction, in the case of ambiguity, the statutes will not be construed as violating the constitution.
            The dynamics of power and politics that play out in the General Assembly can become skewed even further when ballot initiatives are litigated in our courts.  While the process of a bill becoming a law through the legislative labyrinth can certainly be fraught with pressures from special interests, it is at least purportedly counterbalanced by our elected representatives and their allegiance to their constituents.  However, when ballot initiatives are litigated in court, the people do not have a seat at the bargaining table.        
            Citizens have the power to choose whether to enact a ballot measure into law on election day, but until the initiative makes it onto the ballot, they do not have the ability to exercise that power.  This power must be absolutely guarded, otherwise, even statutory procedural requirements could be wielded by special interest attorneys to impede, and ultimately sabotage, citizens’ ability to place their measures before Missouri voters.  Because of the inherent counter-majoritarian nature of many ballot initiatives, allowing statutes to be construed as restrictions on this right, no matter how slight, could incentivize the legislature to enact laws that erode the power of the people to legislate for themselves through the ballot initiative process.  The Supreme Court of Missouri’s holding is an unwavering proclamation expounding the importance of upholding the constitutionally protected power of the people to enact laws notwithstanding the legislature.
-       EB Wiles

[1] Boeving v. Kander, No. SC 95924, 2016 WL 5110503, at *7 (Mo. Sept. 20, 2016) (en banc).
[2] Id. at *2; Mo. Const. art. III, § 51 (West, Westlaw through Nov. 2014).
[3] Boeving, 2016 WL 5110503, at *7.
[4] Id. at *3; Mo. Rev. Stat. § 116.180 (2000).
[5] Id. at *2.
[6] Id.
[7] Id. at *3.
[8] Id. at *1.
[9]  Id.
[10] Id. at *2.
[11] Id.
[12] Boeving v. Kander, No. WD 79694, 2016 WL 3676891, at *11 (Mo. Ct. App. July 8, 2016).
[13] Boeving, 2016 WL 5110503, at *2 (Supreme Court of Missouri opinion).
[14] Id.
[15] Id. at *8.
[16] Id.
[17] Id.
[18] Mo. Const. art. III, §§ 49–53 (West, Westlaw through Nov. 2014).
[19] Id. § 51.
[20] Id. § 50.
[21] Id.
[22] Id.
[23] Id.
[24] Mo. Ann. Stat. §§ 116.010–116.340 (West 2016).
[25] Boeving, 2016 WL 5110503 (Supreme Court of Missouri opinion).
[26] Mo. Const. art. V, § 3 (West, Westlaw through Nov. 2014).
[27] Boeving, 2016 WL 5110503 at *4 (Supreme Court of Missouri opinion).
[28] Id. at *11.
[29] Id. at *5.
[30] Mo. Ann. Stat. § 116.190.4 (West 2016)
[31] Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. 1990) (en banc).
[32] Boeving, 2016 WL 5110503, at *11.
[33] Id. at *6 (“Statutes that place impediments on the initiative power that are inconsistent with the reservation found in the language of the constitution will be declared unconstitutional.”) (quoting Blunt, 799 S.W.2d at 827).