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).
