Wes Shoemyer, Darvin Bentlage, and Richard Oswald v. Missouri Secretary of State Jason Kander , 2015 Mo. LEXIS 100 ( 2015 )

SUPREME COURT OF MISSOURI
en banc
WES SHOEMYER, DARVIN BENTLAGE )
AND RICHARD OSWALD, )
)
Plaintiffs, )
)
v. ) No. SC94516
)
MISSOURI SECRETARY OF STATE )
JASON KANDER, )
)
Defendant. )
)
)
ORIGINAL PROCEEDING: ELECTION CONTEST
Opinion issued June 30, 2015
PER CURIAM
The plaintiffs have filed an election contest challenging the summary statement in
the ballot title of a proposed constitutional amendment. This case, like Dotson v. Kander,
--- S.W.3d --- (Mo. banc 2015) (No. SC94482), decided today, raises the issue of whether
a challenge to a ballot title may be brought after voters have adopted the measure.
Because this Court held in Dotson that chapters 115 and 1161 allow for such
challenges, plaintiffs may bring this suit. The summary statement here was sufficient and
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All references are to RSMo 2000 unless otherwise noted.
fair. This Court finds there was no election irregularity, and the results of the election are
valid.
I. Factual Background
House Joint Resolution Nos. 11 & 7 (HJR 11), truly agreed to and finally passed
by the General Assembly in 2013, referred a constitutional amendment to voters to add
section 35 to article I of the constitution. The measure was placed on the August 5, 2014,
primary election ballot, and voters approved it. The plaintiffs requested a recount of the
election results, which confirmed that the measure passed. Thirty days after the secretary
of state certified the results from the recount, the plaintiffs filed an election contest in this
Court pursuant to section 115.555, arguing that the ballot title was insufficient and
unfair. 2
II. Plaintiffs May Challenge Ballot Title Post-Election
Section 116.155.1 allows the General Assembly to write a summary statement and
fiscal note for any statewide ballot measure that it refers to voters. The summary
statement must be a “true and impartial statement of the purposes of the proposed
measure in language neither intentionally argumentative nor likely to create prejudice
either for or against the proposed measure.” Section 116.155.2. This summary is limited
to 50 words, excluding articles. Id.
Any citizen may challenge the summary statement in a pre-election challenge
under section 116.190, RSMo Supp. 2013, and the challenger bears the burden of
2
This Court has jurisdiction of this case pursuant to MO. CONST. art. VII, sec. 5 and section
115.555. See Dotson v. Kander, ---S.W.3d --- (Mo. banc 2015) (SC94482); Gantt v. Brown, 149
S.W. 644, 646 (Mo. banc 1912); see also Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014).
showing that the ballot title is “insufficient or unfair.” See section 116.190.3. In contrast
to a pre-election challenge under section 116.190, chapter 115 outlines the procedures for
post-election challenges for irregularities that occur during elections. See sections
115.553, 115.593.
The state argues that the plaintiffs cannot challenge the fairness and sufficiency of
the ballot title in a post-election challenge brought under chapter 115. This argument was
rejected in Dotson v. Kander, decided today. --- S.W.3d --- (Mo. banc 2015) (SC94482).
In Dotson, the plaintiffs sought to challenge the summary statement of a ballot title after
the measure was adopted by voters. Dotson held that challenges to the summary
statement of a ballot title may be brought either before the election pursuant to section
116.190 or after the measure has been adopted by voters in an election contest under
chapter 115 so long as the issue has not been previously litigated and determined. Id. at -
-- (Slip op. at 7).
Dotson noted that courts have considered violations of election statutes to be
“irregularities” that may be challenged after an election. Id. at --- (Slip op. at 5). Further,
it reminded that section 116.020 states, in relevant part, that “[t]he election procedures
contained in chapter 115 shall apply to elections on statewide ballot measures.” Id. at ---
(Slip op. at 5). The law allows the plaintiffs in this case to challenge the summary
statement of the ballot title under chapter 115 even though the measure has already been
adopted by voters.
The state also argues that this suit is untimely as it was filed nearly six weeks after
the amendment became effective. See MO. CONST. art. XII, sec. 2(b) (amendments take
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effect thirty days after approval). Section 115.577 provides an election contest under
chapter 115 must be filed “[n]ot later than thirty days after the official announcement of
the election result by the election authority.” Here, the plaintiffs sought a recount after
the election. As the results of the recount could potentially moot an election contest, this
Court finds the thirty day filing period does not begin until the results are certified after a
recount. This suit was timely filed thirty days after the secretary of state certified the
results after the recount.
The state further contends that the plaintiffs’ suit is barred by the doctrine of
laches. As Dotson held that a challenge to a ballot title may be brought post-election, and
the plaintiffs in this case filed the suit within thirty days of receiving the recount results,
there was no unreasonable delay. This suit is not barred by doctrine of laches.
III. Ballot Title Was Sufficient and Fair
To be sufficient and fair, “the summary statement must be adequate and state the
consequences of the initiative without bias, prejudice, deception, or favoritism.” Brown
v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012). It should accurately reflect both the
legal and probable effects of the proposed initiative and be fair and impartial so that the
voters are not deceived or misled, although it is not necessary to set out every detail of
the proposal. Id. at 654, 656.
Here, the ballot summary in the ballot title was sufficient and fair. It asked the
voters:
Shall the Missouri Constitution be amended to ensure that the
right of Missouri citizens to engage in agricultural production
and ranching practices shall not be infringed?
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HJR 11 proposed adding the following language to the constitution:
That agriculture which provides food, energy, health benefits,
and security is the foundation and stabilizing force of
Missouri’s economy. To protect this vital sector of Missouri’s
economy, the right of farmers and ranchers to engage in
farming and ranching practices shall be forever guaranteed in
this state, subject to duly authorized powers, if any, conferred
by article VI of the Constitution of Missouri.
Plaintiffs first argue that the summary statement in HJR 11 was insufficient or
unfair as it omitted that the right was subject to article VI of the constitution, which
governs local governments. They rely on Seay v. Jones, which involved a challenge to a
proposed constitutional amendment that would allow early voting, but only if funds were
so appropriated. 439 S.W.3d 881 (Mo. App. 2014). In Seay, the proposed constitutional
amendment stated, in relevant part, that no local election authority would “conduct any
activity or incur any expense” for facilitating early voting “unless a state appropriation is
made and disbursed to pay the local election authority . . . for the increased cost or
expense of the activity.” Id. at 885 (emphasis added). The summary statement proposed
by the General Assembly did not reference the fact that early voting would only be
available if the state appropriated funds. See id. at 889-90. The court of appeals found
that this omission made the summary statement insufficient and unfair because the
funding contingency was a significant limitation on the early voting rights and its
omission was misleading to voters. Id. at 892.
Seay is distinguishable from the instant case. The right at issue in Seay – the
availability of early voting – was expressly conditioned on whether the General
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Assembly would fund it. Here, however, the “right to farm” is not expressly conditioned
on a third-party action. While it is subject to local government regulation under article
VI, the availability of the right is not dependent on local governments passing an
appropriation or other condition precedent.
Further, the omission of a reference to limitations by article VI in the summary is
not problematic as each section of the constitution is subject to limitations that may be
found elsewhere in the constitution. See State ex rel. Gordon v. Becker, 49 S.W.2d 146,
147 (Mo. banc 1932) (stating that the constitutional grant of legislative authority to the
General Assembly is “subject to all the limitations, express or implied, contained in the
Constitution”). In this context, local governments have always had the powers
enumerated in article VI, and the addition of this amendment does not alter or change
article VI in any way. Nor, conversely, does article VI limit the “right to farm” in such a
way that it was necessary to include this limitation in the summary statement because
local governments have always had the authority granted to them under article VI. As
there was no change in the law, this omission did not render the ballot title insufficient or
unfair. See Dotson, --- S.W.3d at --- (Slip op. at 9).
Additionally, the purpose of the amendment is to ensure that the “right to farm”
“shall be forever guaranteed in this state.” MO. CONST. art. I, sec. 35. This was
effectively communicated to voters by asking them “Shall the Missouri Constitution be
amended to ensure [the enumerated rights] shall not be infringed?” “Shall not be
infringed” does not imply that the right would be unlimited or completely free from
regulation, as no constitutional right is so broad as to prohibit all regulation. See Dotson,
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--- S.W.3d at --- (Slip op. at 12) (noting restrictions on the right to bear arms). As any
limitation on the “right to farm” by article VI did not go to the purpose of the
amendment, it did not need to be referenced in the summary statement.
The plaintiffs next argue that the summary statement inaccurately identified
“citizens” as the beneficiaries of the rights enumerated in the amendment while the actual
amendment applies to “farmers and ranchers.” These terms are not defined in the
amendment, and the plaintiffs contend that the terms “farmers and ranchers” are broad
enough to include any entity engaged in farming or ranching regardless of whether it is a
Missouri citizen. Even if the plaintiffs are correct, this would not render the ballot title
insufficient or unfair or insufficient. If the amendment affords protection for more
classes of people than “citizens,” it also makes the right available to Missouri citizens. It
was not insufficient or unfair to use “citizens” rather than “farmers and ranchers” in the
ballot title.
IV. Conclusion
The plaintiffs were entitled to bring a post-election challenge the ballot title in
HJR 11. As the ballot title was sufficient and fair, there was no election irregularity, and
the results of the election adopting this amendment are valid.
Russell, C.J., Breckenridge,
Fischer and Wilson, JJ., concur;
Teitelman, J., concurs in result;
Stith, J., dissents in separate opinion filed;
Draper, J., concurs in opinion of Stith, J.
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SUPREME COURT OF MISSOURI
en banc
WES SHOEMYER, DARVIN BENTLAGE, )
AND RICHARD OSWALD, )
)
Plaintiffs, )
)
v. ) No. SC94516
)
MISSOURI SECRETARY OF STATE )
JASON KANDER, )
)
Defendant. )
DISSENTING OPINION
I respectfully dissent. The principal opinion holds that the challenge to the
summary statement of the ballot title was timely because chapter 115, RSMo, in contrast
to chapter 116, RSMo, allows for a post-election challenge. I disagree with the principal
opinion’s construction of chapter 115 to apply to challenges to a ballot title. As discussed
in greater detail in my separate opinion in Dotson v. Kander, -- S.W.3d -- (Mo. banc
2015) (No. SC94482) (“Dotson II”) (Stith, J., concurring in result), a challenge to a ballot
title can be brought only prior to an election under chapter 116. Ballot title errors are not
“irregularities” in an election as contemplated by chapter 115. I, therefore, would not
permit the filing of a challenge to a ballot title after the election in the first instance.
The principal opinion relies on Dotson v. Kander, 435 S.W.3d 643 (Mo. banc
2014) (Dotson I) and Dotson II to justify the use of chapter 115 to allow the filing of a
post-election challenge to a ballot title even when no petition challenging the ballot title
was filed pre-election as required by section 116.190, RSMo Supp. 2013. Dotson II so
held because the Court believed itself bound by dicta in Dotson I, which so permitted. I
concurred in Dotson I, but, for the reasons stated in my separate opinion in Dotson II, it is
now evident that this dicta in Dotson I simply was incorrect and stands as an abject
demonstration of the dangers of obiter dictum, particularly when, as in Dotson I, that
issue was not briefed or argued.
Chapter 116 governs ballot-title challenges and, as such, section 116.190 mandates
that a ballot title challenge must be brought within 10 days of certification of a matter for
the ballot. Chapter 116 does not provide that, alternatively, such a challenge may be
brought after the election under chapter 115. Such challenges must initially be brought
prior to the election so that, if possible, they can be determined prior to the election,
allowing correction of any unfairness and insufficiency in the ballot title in most
instances.
When, as in Dotson II, there is insufficient time to finally determine the fairness
and sufficiency issues prior to six weeks before the election at which the matter will be
voted, then the matter may continue until resolution even if that means that it is not
finally resolved until after the election. But here, because no petition challenging the
ballot title was filed prior to the election as required by section 116.190, the petitioners
may not for the first time file a challenge to the ballot title under chapter 115.
Certainly there is no reason to doubt that in the instant case the post-election
challenge under chapter 115 was made in good faith reliance on Dotson I. But permitting
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such challenges first to be brought after an election invites sandbagging – waiting to see
if a measure passes and only challenging the ballot title if the measure does pass, when it
is too late to correct the ballot title.
Because the challenge was not brought prior to the election as mandated by
chapter 116, I would hold that the challenge is untimely.
_________________________________
LAURA DENVIR STITH, JUDGE
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