Jim Boeving, Patty Arrowood, Robert E. Pund, and Robert A. Klein v. Missouri Secretary of State Jason Kander, Raise Your Hand for Kids, and Erin Brower , 496 S.W.3d 498 ( 2016 )

SUPREME COURT OF MISSOURI
en banc
JIM BOEVING, PATTY ARROWOOD, ) Opinion issued September 20, 2016
ROBERT E. PUND, and ROBERT A. )
KLEIN, )
)
Appellants, )
)
v. ) No. SC95924
)
MISSOURI SECRETARY OF STATE )
JASON KANDER, RAISE YOUR HAND )
FOR KIDS, and ERIN BROWER, )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
The Honorable Jon E. Beetem, Judge
Appellants brought several challenges to the Secretary of State’s August 9, 2016,
decision certifying Amendment No. 3, a constitutional amendment proposed by initiative
petition, for the November 8, 2016 general election ballot. The trial court rejected some
of these challenges on their merits and determined that the remainder were premature.
This Court has jurisdiction pursuant to article V, section 3, of the Missouri Constitution,
and the trial court’s judgment is affirmed.
Background
This appeal arises from three separate cases brought pursuant to section
116.200.1 1 by various individuals challenging the Secretary of State’s August 9, 2016,
decision certifying Amendment No. 3 for the November 8, 2016, general election ballot.
All three cases were heard in the trial court on a common record and resolved in a
common judgment. The trial court’s findings of fact include the following.
I. Amendment No. 3
In 2015, Raise Your Hand For Kids, Inc., a Missouri non-profit corporation and
campaign committee (“RYH4K”), and Ms. Brower, one of its directors (collectively,
“Proponents”) sought to amend article IV of the Missouri Constitution by adding a new
section 54 and subsections 54(a)-(c). Proponents’ counsel submitted an initiative petition
sample sheet containing the full text of the proposed constitutional amendment
(“Amendment No. 3”) 2 to the Secretary of State on November 20, 2015.
Following the statutory procedures for preparing an official ballot title, the
Secretary: (1) drafted the summary statement portion of the ballot title, § 116.160, and
(2) forwarded Amendment No. 3 to the State Auditor for preparation of the fiscal note
and drafting of the fiscal note summary portion of the ballot title, § 116.175. On January
5, 2016, the Secretary certified the combination of his summary statement and the
1
All statutory references are to RSMo 2000, except section 116.175, RSMo Cum. Supp. 2013,
and section 116.190, RSMo Noncum. Supp. 2015.
2
Originally, the Secretary designated Proponent’s initiative petition as IP 2016-152. The
designation “Amendment No. 3” was not assigned until the signatures were submitted and the
Secretary certified it for the ballot. § 116.210. For ease of reference, however, all references to
Proponents’ proposal are made using the designation “Amendment No. 3.”
2
Auditor’s fiscal note summary as the official ballot title. § 116.180. As required by
section 116.180, Proponents affixed this official ballot title to their initiative petition,
printed numerous copies, and began gathering signatures.
On May 7, 2016, Proponents submitted to the Secretary of State more than
330,000 signatures in support of Amendment No. 3. Each of the signature pages
contained the full text of Amendment No. 3 and the official ballot title certified by the
Secretary of State on January 5. Following verification by local election authorities, the
Secretary of State determined that Proponents had submitted a sufficient number of valid
signatures to meet the constitutional threshold for constitutional amendments by initiative
petition, i.e., more than eight percent of the legal voters (based on the number of votes in
the last gubernatorial election) in six of Missouri’s eight congressional districts.
Accordingly, on August 9, 2016, the Secretary of State issued a Certificate of Sufficiency
stating Amendment No. 3 would be placed before the voters on the November 8, 2016,
general election ballot.
II. Ballot title litigation
On January 15, 2016, Mr. Boeving challenged the official ballot title that had been
certified by the Secretary of State on January 5, 2016. He filed this “Ballot Title
Litigation” pursuant to section 116.190. Because Mr. Boeving challenged both portions
of the ballot title, i.e., the summary statement and the fiscal summary, he named both the
Secretary of State and the State Auditor as defendants. § 116.190.2. Proponents sought
(and were granted) intervention in the Ballot Title Litigation. On May 19, 2016, after
Proponents had gathered all of the signatures in support of Amendment No. 3 and
3
submitted them to the Secretary of State, the trial court entered judgment in this Ballot
Title Litigation. It rejected Mr. Boeving’s challenge to the summary statement portion of
the ballot title but determined that the fiscal note summary portion of the ballot title was
“unfair and insufficient” under section 116.190.3.
The Auditor and Proponents appealed the portion of the trial court’s judgment
pertaining to the fiscal note summary, and Mr. Boeving cross-appealed the trial court’s
denial of his challenge to the summary statement. The court of appeals reversed the
judgment. It held that the fiscal note summary portion of the ballot title was “fair and
sufficient” but held that the summary statement portion of the ballot was “unfair and
insufficient.” Boeving v. Kander, ___ S.W.3d ___, ___ (Mo. App. July 8, 2016) (Case
No. WD79694). As a result, it certified “the following [corrected] summary statement
language to the Secretary of State, for inclusion in the official ballot title for the initiative
petition ….” Id. This Court denied transfer, see Case No. SC95802 (July 14, 2016), and
the court of appeals issued its mandate on July 15, 2016. On July 18, 2016, pursuant to
section 116.190.4, the Secretary of State certified the new ballot title with the changes
ordered by the court of appeals.
The ballot title certified by the Secretary of State on July 18 was not included on
the initiative petitions that Proponents had circulated for signatures. This is because the
signature gathering process had been completed – and the signed petitions submitted to
the Secretary of State – on May 7, long before the court of appeals issued its mandate on
July 15 or the Secretary of State certified the revised ballot title on July 18. Instead, all of
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the signatures were gathered and submitted to the Secretary of State using petitions
bearing the ballot title certified by the Secretary of State on January 5, 2016.
III. The present litigation
On August 9, 2016, the Secretary of State certified that Proponents had submitted
sufficient valid signatures to have Amendment No. 3 put before Missouri voters on the
November 8, 2016, general election ballot. In response, Mr. Boeving, Ms. Arrowood,
and Messrs. Pund and Klein filed three separate lawsuits seeking to compel the Secretary
to reverse this decision. § 116.200.1. For ease of analysis, the challengers’ claims are
aggregated and the challengers are referred to collectively as “Opponents.”
Opponents first claimed that the Secretary should not have counted any of the
signatures gathered and submitted by Proponents because those signatures were gathered
and submitted using the official ballot title certified by the Secretary on January 5, 2016,
without the changes ordered by the court of appeals on July 15, 2016. Second, they
claimed that Amendment No. 3 violates article III, section 50, of the Missouri
Constitution, which states in pertinent part: “Petitions for constitutional amendments
shall not contain more than one amended and revised article of this constitution, or one
new article which shall not contain more than one subject and matters properly connected
therewith[.]” Third, Opponents claimed that Amendment No. 3 violates the first clause
of the first sentence of article III, section 51, of the Missouri Constitution, which states
that the “initiative shall not be used for the appropriation of money other than of new
revenues created and provided for thereby ….” Finally, Opponents claimed that
Amendment No. 3 violates the second clause of the first sentence of article III, section
5
51, which states that the “initiative shall not be used … for any other purpose prohibited
by this constitution,” in that the operation and effect of Amendment No. 3 (if approved
and implemented) could violate various preexisting provisions of the Missouri
Constitution.
Proponents intervened and, together with the Secretary, defended the August 9
certification of Amendment No. 3 against Opponents’ challenges. With respect to
Opponents’ first claim, the Secretary and Proponents argued that the applicable sections
of chapter 116 do not require the Secretary to reject Proponents’ signatures merely
because of a court-ordered change to the official ballot title that occurred after the
signatures were gathered and submitted. In addition, Proponents claimed that – to the
extent one or more statutes in chapter 116 are construed to require the Secretary to reject
the signatures gathered and submitted by Proponents – those provisions are
unconstitutional because they infringe upon Proponents’ rights to propose constitutional
amendments by initiative petition under article III, section 49, of the Missouri
Constitution.
The trial court did not formally consolidate Opponents’ cases, but all three cases
were heard at the same time, on a common record, and were resolved in a common
judgment. The trial court rejected Opponents’ first claim and determined that the
Secretary properly found Proponents had submitted a sufficient number of valid
signatures to qualify for the ballot under article III, section 50. It also rejected
Opponents’ second claim and determined that Amendment No. 3 did not violate the
“single article” or “single subject” requirements in article III, section 50. Finally, the
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trial court determined that Opponents’ third and fourth claims were premature and could
be raised only if – and after – Missouri voters approved Amendment No. 3 in the 2016
general election. Because the trial court determined that the applicable statutes in
chapter 116 do not require the Secretary to reject the signatures gathered and submitted
by Proponents, it had no occasion to address Proponents’ alternative constitutional
claims.
Opponents timely appealed the trial court’s judgment to the court of appeals. The
court of appeals formally consolidated the appeals and, on September 8, 2016, transferred
the matter to this Court on the basis that article V, section 3, of the Missouri Constitution
gives this Court exclusive appellate jurisdiction over Opponents’ appeal.
Analysis
I. This Court has exclusive appellate jurisdiction
Opponents did not assert any claims in the trial court that, on appeal, fall within
this Court’s exclusive jurisdiction, and the Secretary did not raise any such claims in
defending Opponents’ challenges. Proponents, however, did raise such a claim. They
argued that if – but only if – the Opponents are correct (i.e., that one or more statutory
provisions in chapter 116 require the Secretary not to count the signatures Proponents had
gathered and submitted), then whichever provisions in chapter 116 mandate such a result
are unenforceable because they are an unconstitutional infringement of Proponents’ right
to propose constitutional amendments by initiative petition.
The trial court never reached Proponents’ fallback, constitutional claim because it
determined that chapter 116 does not contain any statutory provisions requiring the
7
Secretary to reject the signatures gathered and submitted by Proponents. By the same
token, the court of appeals may well have affirmed – and this Court does affirm – the trial
court’s judgment solely as a matter of statutory construction without reaching
Proponents’ alternative, constitutional claim. But, “[e]xclusive appellate jurisdiction of a
case cannot depend upon how certain issues of that case are decided, with appellate
jurisdiction in this court if decided one way but jurisdiction in the court of appeals if
decided the other way.” State ex rel. State Highway Comm’n v. Wiggins, 454 S.W.2d
899, 902 (Mo. banc 1970). Instead, where any party properly raises and preserves in the
trial court a real and substantial (as opposed to merely colorable) claim that a statute is
unconstitutional, this Court has exclusive appellate jurisdiction over any appeal in which
that claim may need to be resolved. “Once the case properly invokes this Court’s
jurisdiction, the ultimate determination that the constitutional issue is not meritorious or
that the merits of the constitutional issue should not be addressed does not retroactively
deprive this Court of jurisdiction.” Mayes v. Saint Luke’s Hosp. of Kansas City, 430
S.W.3d 260, 270 (Mo. banc 2014).
Here, if the appellate court agreed with Opponents’ claim that – properly
construed – one or more of sections 116.190.4, 116.180, and 116.120.1 require the
Secretary to reject the signatures submitted by Proponents, then that court necessarily
would have to address Proponents’ real and substantial claim that these statutes (so
construed) are unconstitutional on a claim Proponents properly raised and preserved in
the trial court. As a result of that possibility, exclusive appellate jurisdiction over
Opponents’ appeal rests with this Court. The fact that this Court does not need to
8
reach the merits of Proponents’ constitutional claim in order to resolve Opponents’
appeal does not change the analysis or give the court of appeals appellate jurisdiction. 3
II. Proponents submitted a sufficient number of valid signatures
Opponents do not challenge the validity of any particular signatures. Instead,
Opponents claim that, in determining whether Proponents submitted a sufficient number
of valid signatures in support of Amendment No. 3 to qualify for the ballot under article
III, section 50, the Secretary was required to count only those signatures that were
gathered and submitted on petition pages bearing the official ballot title after the court of
appeals had ordered changes to that title on July 15 and the Secretary had certified a new
title with the court-ordered changes on July 18. In other words, because Proponents had
3
Even though Proponents prevailed in the trial court, they sought to appeal the trial court’s
refusal to reach the merits of their constitutional claim to this Court. This Court dismissed
Proponents’ appeals, not because they were not within this Court’s exclusive appellate
jurisdiction (in which case the Court would have transferred the cases to the court of appeals),
but because Proponents had no right to appeal under section 512.020 in that Proponents were not
“aggrieved” by the trial court’s final judgment. Proponents asserted their constitutional claim
only in the event that the trial court adopted the construction of sections 116.190.4, 116.180, and
116.120.1 that Opponents advocated. But, because it expressly rejected that construction, the
trial court never reached Proponents’ alternative, constitutional claim. Under section 512.020,
therefore, Proponents cannot appeal from a judgment that decided no issue against them. This
does not mean, however, that Proponents cannot assert their constitutional claim in their role as
respondents in Opponents’ appeal. Like any respondent, Proponents are entitled to assert
alternative grounds on which to affirm the trial court’s judgement. See Rouner v. Wise, 446
S.W.3d 242, 249 (Mo. banc 2014) (appellate courts are “primarily concerned with the
correctness of the trial court’s result, not the route taken by the trial court to reach that result”)
(citing Business Men’s Assur. Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999));
American Eagle Waste Indus., LLC v. St. Louis County, 379 S.W.3d 813, 829 (Mo. banc 2012)
(judgment must be “affirmed if cognizable under any theory, regardless of whether the reasons
advanced by the trial court are wrong or not sufficient”). Proponents’ constitutional claim is of
this nature and, as explained above, the mere possibility that this claim may need to be addressed
in order to resolve Opponents’ appeal is sufficient to give this Court exclusive jurisdiction over
that appeal regardless of whether this Court ultimately finds it necessary to reach Proponents’
constitutional claim in order to resolve Opponents’ appeal.
9
gathered and submitted all of their signatures on May 7 (one day before the May 8
constitutional deadline for submitting signed petitions), Opponents claim that none of the
signatures gathered and submitted by Proponents were valid and the Secretary was bound
to reject them all.
In support of this argument, Opponents rely on three statutes. First, if a lawsuit is
filed pursuant to section 116.190 to challenge the official ballot title certified by the
Secretary of State and that challenge results (after final judgment and all appeals) in
court-ordered changes to the official ballot title, section 116.190.4 provides: “In making
the legal notice to election authorities under section 116.240, and for the purposes of
section 116.180, the secretary of state shall certify the language which the court certifies
to him.” Second, section 116.180, which is referred to in section 116.190.4, provides:
Within three days after receiving the official summary statement the
approved fiscal note summary and the fiscal note relating to any statewide
ballot measure, the secretary of state shall certify the official ballot title in
separate paragraphs with the fiscal note summary immediately following
the summary statement of the measure and shall deliver a copy of the
official ballot title and the fiscal note … to the person [i.e., proponent]
whose name and address are designated under section 116.332. Persons
circulating the petition shall affix the official ballot title to each page of the
petition prior to circulation and signatures shall not be counted if the
official ballot title is not affixed to the page containing such signatures.
§ 116.180. Finally, section 116.120 provides:
When an initiative or referendum petition is submitted to the secretary of
state, he or she shall examine the petition to determine whether it complies
with the Constitution of Missouri and with this chapter. Signatures on
petition pages that have been collected by any person who is not properly
registered with the secretary of state as a circulator shall not be counted as
10
valid. Signatures on petition pages that do not have the official ballot title
affixed to the page shall not be counted as valid.
§ 116.120.1.
Opponents argue that, in all cases in which a court orders changes to the official
ballot title under section 116.190.4, the phrase “official ballot title” as used in sections
116.180 and 116.120.1 means only the last title certified by the Secretary, i.e., the one the
Secretary certifies pursuant to section 116.190.4. As a result, Opponents contend that –
even though Proponents “affixed” the official ballot title for Amendment No. 3 that the
Secretary certified and delivered to them on January 5, 2016, to each of their petition
pages before circulating them for signature and submitting them to the Secretary on
May 7, 2016 – the Secretary cannot count any of those signatures because he certified a
different official ballot title for Amendment No. 3 on July 18, 2016, as a result of the
mandate from the court of appeals under section 116.190.4.
The Court rejects Opponents’ argument and holds that there is no clear and
unequivocal requirement in sections 116.190.4, 116.180, or 116.120.1 (or elsewhere in
chapter 116) prohibiting the Secretary from counting the signatures Proponents gathered
and submitted to him on May 7. In the absence of such a clear and unequivocal
requirement, the Court has no occasion to consider whether the effect of such a
requirement on Proponents – who bear no fault for the flaw in the January 5 official
ballot title identified by the court of appeals on July 15 – unconstitutionally burdens
Proponents’ right to seek to amend the Missouri Constitution using the initiative petition
11
process specifically reserved to the people of this state in article III, section 49, of the
Missouri Constitution.
The Court’s holding is compelled by the facts of this case and the language of the
applicable statutes. On January 5, 2016, the Secretary fully complied with his obligations
under section 116.180 when he certified and delivered the official ballot title for
Amendment No. 3 to the Proponents. Proponents then fully complied with their
obligations under section 116.180 when they “affixed” this official ballot title to each
page of their petition before circulating it for signatures. On May 7, 2016, when
Proponents submitted their signed petition to the Secretary, all of the signed petition
pages displayed the only official ballot title for Amendment No. 3 that the Secretary had
ever certified – and that Proponents had ever received – up to that date. Even though
Mr. Boeving initiated the Ballot Title Litigation on January 15, 2016, the trial court did
not enter judgment calling for changes to the official ballot title until May 19, nearly two
weeks after Proponents submitted their signed petition to the Secretary, and the ultimate
judgment in the Ballot Title Litigation (i.e., the mandate from the court of appeals)
ordering the Secretary to make changes to the official ballot title did not issue until
July 15, more than two months after Proponents submitted their petition to the Secretary.
When the Secretary received the mandate from the court of appeals, he fully
complied with his obligation under section 116.190.4 on July 18 when he certified the
new, court-ordered official ballot title to local election authorities and delivered it to
Proponents. When Proponents received the new official ballot title from the Secretary on
July 18, however, nothing in sections 116.180 or 116.120.1 required them to start over,
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i.e., to reaffix this new ballot title to their petition pages, recirculate those petition pages
for signature, and then resubmit the regathered signatures to the Secretary. Nor is there
anything in sections 116.180 or 116.120.1 that requires the Secretary to have rejected
otherwise valid signatures on Proponents’ petition pages when those pages complied with
sections 116.180 or 116.120.1 at the time they were circulated and at the time they were
signed.
For this Court to find that chapter 116 intends the harsh result advocated by
Opponents, there would need to be statutory language plainly and unambiguously stating
that a court-ordered change to the official ballot title under section 116.190.4 necessarily
invalidates all signatures gathered before that court-ordered change occurs regardless of
the fact that those signatures were gathered on petition pages that properly displayed
what was (at that time) the official ballot title as certified by the Secretary. No such plain
and unambiguous language appears in sections 116.190.4, 116.180, and 116.120.1 (or
any other provisions of chapter 116). Instead, the clear import of these statutes is that the
“official ballot title” refers to the title originally certified by the Secretary pursuant
section 116.180 unless and until the Secretary certifies a different title under section
116.190.4. At any given point in time, however, there is only one “official ballot title.”
Sections 116.180 and 116.120.1 require the proponents of a constitutional
amendment to place the “official ballot title” on their petition pages before circulation
and signatures, but this means the “official ballot title” at the time of circulation and
signature. Both section 116.180 and 116.120.1 state that a failure to comply with this
requirement will invalidate the signatures gathered. But neither statute (nor any other in
13
chapter 116) purports to invalidate signatures already gathered and submitted to the
Secretary in full compliance with these requirements when the Secretary later certifies a
different ballot title in compliance with a court order under section 116.190.4.
The courts of this state must zealously guard the power of the initiative petition
process that the people expressly reserved to themselves in article III, section 49. To that
end, “[c]onstitutional and statutory provisions relative to initiative are liberally construed
to make effective the people’s reservation of that power.” Missourians to Protect the
Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). Accordingly, in the
absence of any clear and unambiguous statutory requirement invalidating signatures
gathered on petition pages that displayed the only “official ballot title” the Secretary had
certified and delivered to the petition’s proponents at the time those pages were circulated
and signed solely because the Secretary later certified a different “official ballot title,” the
Court will not infer such a requirement. Having refused to construe these (or any other)
statutes to impose that requirement, the Court does not need to address whether such a
requirement would be unconstitutional as described in Blunt, 799 S.W.2d at 827
(“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.”).
Opponents argue that the purpose of sections 116.190.4, 116.180, and 116.120.1 is
to ensure that a proposed constitutional amendment is not represented on the initiative
petition by one official ballot title and on the ballot by a different official ballot title,
particularly where the former was replaced by the latter because it was judicially
determined to be “unfair and insufficient” under section 116.190.1. But Opponents’
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assertion is not supported by the language of these statutes or the constitutional
provisions they purport to implement. As discussed above, there is no statutory language
explicitly compelling this result, and the Court will not infer such a requirement. More
importantly, Opponents’ argument runs counter to the language of the constitutional
provisions that expressly reserve the power of the initiative petition process to the people.
There is a clear requirement that constitutional amendments proposed by initiative
petition must be identified by “official ballot title” when put before the voters. See Mo.
Const. art. XII, sec. 2(b) (“All amendments proposed by the general assembly or by the
initiative shall be submitted to the electors for their approval or rejection by official ballot
title as may be provided by law, on a separate ballot without party designation ….”). But
this provision only authorizes legislation detailing the requirement for an “official ballot
title” at the time the proposed constitutional amendment is put before the voters. There is
no similar express constitutional authorization for statutes to impose a requirement that
an “official ballot title” – or a title of any sort – must be displayed on the pages of
initiative petitions proposing constitutional amendments before they may be circulated
for signatures.
The requirements for initiative petitions proposing constitutional amendments are
set forth in article III, section 50, and this provision does not require that the initiative
petition carry an “official ballot title” or a “title” of any sort. Instead, it provides only
that an initiative petition proposing a constitutional amendment “shall contain … the full
text of the measure” and that it must have an “enacting clause” in the following form:
“Be it resolved by the people of the state of Missouri that the Constitution be amended:”
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Mo. Const. art. III, sec. 50. Any concerns the framers may have had concerning
providing potential signers with accurate information would have been satisfied fully by
these requirements, and the lack of a title requirement may well have been intended to
avoid burdening potential signers with redundant (or, worse, misleading) information.
This omission of a title requirement for initiative petitions proposing constitutional
amendments is even more striking in light of the express constitutional requirement for a
“title” on those initiative petitions that propose statutory (rather than constitutional)
amendments. See Mo. Const. art. III, sec. 50 (“Petitions for laws shall contain not more
than one subject which shall be expressed clearly in the title, and the enacting clause
thereof”) (emphasis added).
Proponents do not claim that sections 116.180 and 116.120.1 are unconstitutional
because they required Proponents to “affix” an “official ballot title” authored by
executive branch officials to their initiative petition prior to circulating it for signatures.
Instead, they claim that these statutes are unconstitutional if – but only if – they are
construed to require the Secretary to reject the signatures due to a court-ordered change to
the official ballot title that occurred after Proponents had gathered and submitted their
signatures. Because the Court rejects any such construction, the Court has no occasion to
address Proponents’ constitutional claim.
III. Amendment No. 3 does not, on its face, amend or create more than one article
of the Missouri Constitution
In the trial court, Opponents argued that the Secretary should not have certified
Amendment No. 3 for the ballot because it contains more than one subject and because it
16
amends or creates more than one article of the Missouri Constitution. The trial court
rejected both contentions. On appeal, Opponents have abandoned the multiple subject
challenge 4 and now maintain only that Amendment No. 3 amends or creates more than
one article of the Missouri Constitution. The trial court’s decision on this issue is
affirmed.
Article III, section 50, provides in pertinent part: “Petitions for constitutional
amendments shall not contain more than one amended and revised article of this
constitution, or one new article which shall not contain more than one subject and matters
properly connected therewith.” See also Mo. Const. art. XII, sec. 2(b) (same).
Opponents concede that, on its face, Amendment No. 3 complies with this “single article”
requirement. It purports to amend only article IV by creating a new section 54 and new
subsections 54(a)-(c). In this appeal, however, Opponents contend that Amendment
No. 3 “amends by implication” the following provisions of the state constitution: (a)
those portions of article IX, section 8, and article 1, section 7, regarding the expenditure
of state money for religious purposes; and (b) those portions of article X, sections 1 and
2, which give the power of taxation only to the general assembly or political subdivision
to which it delegates that power. Of these arguments on appeal, this Court need address
only Opponents’ argument that Amendment No. 3 “amends by implication” article IX,
4
See Comm. For A Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503, 511 n. 7 (Mo. banc
2006) (contentions not set forth in points relied on are considered abandoned).
17
section 8, because that is the only argument Opponents properly raised and preserved in
the trial court. 5
Opponents argument that Amendment No. 3 “amends by implication” article IX,
section 8, is based on section 54(b)(2) of Amendment No. 3, which states: “Distributions
of funds under this amendment shall not be limited or prohibited by the provisions of
article IX, section 8.” Article IX, section 8, provides:
Neither the general assembly, nor any county, city, town, township, school
district or other municipal corporation, shall ever make an appropriation or
pay from any public fund whatever, anything in aid of any religious creed,
church or sectarian purpose, or to help to support or sustain any private or
public school, academy, seminary, college, university, or other institution
of learning controlled by any religious creed, church or sectarian
denomination whatever; nor shall any grant or donation of personal
property or real estate ever be made by the state, or any county, city, town,
or other municipal corporation, for any religious creed, church, or sectarian
purpose whatever.
This Court has been unwilling in the past to construe the constitutional provisions
reserving to the people the power to propose constitutional amendments to impose any
requirement that a measure’s proponents identify every provision of the existing
constitution that the proposed amendment might conceivably alter or affect if and when
the proposed amendment is approved by the voters and put into operation. Buchanan v.
Kirkpatrick, 615 S.W.2d 6, 15 (Mo. 1981) (“Moore does not require the makers of an
5
See Mayes, 430 S.W.3d at 266 (“To raise a constitutional challenge properly, the party must:
‘(1) raise the constitutional question at the first available opportunity; (2) designate specifically
the constitutional provision claimed to have been violated, such as by explicit reference to the
article and section or by quotation of the provision itself; (3) state the facts showing the
violation; and (4) preserve the constitutional question throughout for appellate review.’”)
(quoting United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004)).
18
initiative petition to “ferret out” and to list all the provisions which could possibly or by
implication be modified by the proposed amendment.”) (citing Moore v. Brown, 165
S.W.2d 657, 663 (Mo. banc 1942)). Nor is this Court willing to construe article III,
section 50, to prohibit voters from approving or rejecting a constitutional amendment
proposed by initiative petition simply because the proposed amendment may (if and when
it goes into operation) be construed to alter or affect the application of a preexisting
constitutional provision. By its terms, article III, section 50 is concerned only with what
a proposed constitutional amendment “contains,” not with what a proposed constitutional
amendment will or might do if the voters approve it.
Moreover, there is no need in the present case to refine any further the meaning of
the “one article” limitation in article III, section 50. By its terms, article IX, section 8,
prohibits the payment of public funds for certain purposes by “the general assembly, []or
any county, city, town, township, school district or other municipal corporation[.]”
Amendment No. 3, on the other hand, creates a new constitutional entity (i.e., the “Early
Childhood Commission”) and authorizes it to make grants of public funds to various
entities for various purposes. The fact that Amendment No. 3 notes that the restrictions
in article IX, section 8, will not apply to this Commission’s activities does not purport to
– and does not necessarily have the effect of – amending article IX, section 8. Cf. Payne
v. Kirkpatrick, 685 S.W.2d 891, 903 (Mo. App. 1984) (“It does not follow that such
prohibitions [on spending by the general assembly], as found within § 39, applies to
initiative petitions, particularly in light of the language [reserving the power to propose
constitutional amendments by initiative petition] contained within § 49 of Article III”).
19
Accordingly, Amendment No. 3 does not “contain more than one amended and revised
article of this constitution, or one new article” as prohibited by article III, section 50.
IV. Amendment No. 3 does not violate the prohibition against appropriation by
initiative in article III, section 51
Opponents argue that Amendment No. 3 violates the provision in article III,
section 51, which states that the “initiative shall not be used for the appropriation of
money other than of new revenues created and provided for thereby[.]” Such an
argument goes to what Amendment No. 3 will or may do if approved by the voters and
put into operation, not to whether Amendment No. 3 is properly put before the voters at
all. As discussed below, such challenges to the effect of a proposed amendment if
enacted rather than to the sufficiency of the initiative petition process are premature,
burdensome to those who seek to avail themselves of the power of initiative process
reserved to the people in article III, section 49, and better addressed in the context of
actual (rather than hypothetical) application.
This Court, however, has entertained “appropriation by initiative” claims in
pre-election litigation. 6 See, e.g., Comm. For A Healthy Future, Inc. v. Carnahan, 201
6
Successful challenges have been limited almost exclusively to initiative petitions proposing
local ordinances where the evident purpose and effect of the proposal was to impose a new
obligation leaving no discretion as to whether the local governments would or could pay this new
obligation and no new source of revenue sufficient to do so. See, e.g., Kansas City v. McGee,
269 S.W.2d 662, 665 (1954) (“proposed ordinance is, in effect, an appropriation ordinance but
does not create nor provide for any revenues”); Sate ex rel. Card v. Kaufman, 517 S.W.2d 78, 80
(Mo. 1974) (“By its plain intendment it requires the budget official to include the specified
compensation in the budget, and requires the city council to approve it, regardless of any other
financial considerations …. There is no pretense that it creates or provides new revenues with
which to fund the additional cost to the city.”). As a result, these cases met the “irreconcilable
conflict” standard for pre-election review later articulated by this Court in Healthy Future, 201
S.W.3d at 510.
20
S.W.3d 503, 510 (Mo. banc 2006) (rejecting claim and noting Court was bound to adopt
“interpretation [that] harmonizes the provisions of section 12 of the initiative and article
III, section 51 of the state constitution rather than creating an irreconcilable conflict”);
Buchanan, 615 S.W.2d at 15 (“We find no merit in the allegation that Amendment No. 5
appropriates in contravention of the Constitution.”). 7 There is no reason for this Court to
reexamine the law in these cases regarding their authorization of pre-election challenges
based on article III, section 51, however, as Opponents’ claims lack merit substantially
for the reasons set forth in Healthy Future.
Opponents do not claim that the language of Amendment No. 3 creates the sort of
unavoidable and irreconcilable conflict with article III, section 51, referred to in Healthy
Future by seeking expressly to appropriate funds other than those that are raised by the
taxes the amendment would impose. Instead, assuming that Amendment No. 3 is
approved by the voters and put into effect, Opponents argue that the language of
Amendment No. 3 would do so only to a very limited – and perhaps inadvertent – extent.
They point to the fact that, if and when Amendment No. 3 goes into effect, funds
presently held in the “Coordinating Board for Early Childhood Fund” will be
incorporated into the “Early Childhood Health and Education Trust Fund” created in
Amendment No. 3. Those funds (plus all new funds generated by Amendment No. 3)
7
It should be noted that cases such as City of Kansas City, Missouri v. Chastain, 420 S.W.3d
550 (Mo. banc 2014), are of a different stripe. Where a government official relies on a supposed
“appropriation by initiative” violation (or any other claim aimed at the substance of a proposal)
as the reason to keep an otherwise sufficient initiative petition proposal off the ballot, courts
must entertain actions by the proponents of the proposal seeking to compel access to the ballot or
leave such proponents remediless.
21
then will be disbursed according to the procedures set forth in Amendment No. 3. As far
as the record discloses, however, not only was this preexisting fund never linked to any
particular source of revenue, it never held any funds (through legislative appropriation or
otherwise) until April 2016, when a single individual “donated” $100 to this fund.
Such maneuverings aside, the salient point in this pre-election contest is that there
is nothing on the face of Amendment No. 3 that clearly and unavoidably purports to
appropriate previously existing funds (as opposed to those that may be generated by the
amendment itself). Accordingly, under Healthy Future, Amendment No. 3 does not
violate article III, section 51. If Amendment No. 3 is approved by the voters and this
“donor” believes that an imminent application of the provisions of Amendment No. 3 will
result in the expenditure of his or her $100 without legislative appropriation, he or she
should raise this challenge at that time, and, if it succeeds, it is likely that a remedy can
be fashioned that is far more narrowly tailored than the wholesale rejection Opponents
seek here.
V. The remainder of Opponents’ substantive challenges are premature
Finally, Opponents claim that Amendment No. 3 violates the second clause of the
first sentence of article III, section 51, which states that the “initiative shall not be used
… for any other purpose prohibited by this constitution.” They contend that – if
Amendment No. 3 is approved by the voters and put into effect – it authorizes or requires
actions that are not permitted under various provisions of Missouri’s preexisting
Constitution and, therefore, violates this provision of article III, section 51.
22
All of these challenges, by definition, relate to what Amendment No. 3 will (or
even might) do if approved by the voters and put into operation, not whether Amendment
No. 3 satisfies the constitutional requirements to be put before the voters in the first
instance. Challenges to whether the effect of a proposed constitutional amendment (if
approved) will or might violate some limitation on the people’s use of the initiative
process imposed by the Missouri Constitution (or a substantive restriction imposed by the
federal constitution) are premature unless and until the amendment has been approved by
the voters and taken effect. “To avoid encroachment on the people’s constitutional
authority, courts will not sit in judgment on the wisdom or folly of the initiative proposal
presented, nor will this Court issue an advisory opinion as to whether a particular
proposal, if adopted, would violate a superseding law of this state or the United States
Constitution.” Brown v. Carnahan, 370 S.W.3d 637, 645 (Mo. banc 2012) (emphasis
added). Instead, our “single function [prior to the election] is to ask whether the
constitutional requirements and limits of power, as expressed in the provisions relating to
the procedure and form of initiative petitions, have been regarded.” State ex rel. Trotter v.
Cirtin, 941 S.W.2d 498, 500 (Mo. banc 1997) (quoting Blunt, 799 S.W.2d at 827). See
also Buchanan, 615 S.W.2d at 12 (noting “that at no place in either the Missouri
Constitution or in the implementing statutes is any court granted the power to enjoin an
amendment from being placed on the ballot upon the ground that it would be
23
unconstitutional if passed and adopted by the voters.”) (citing Moore, 165 S.W.2d at
660). 8
Article III, section 50, sets forth the requirements for the form of initiative
petitions proposing constitutional amendments or statutory enactments, the “single
article” limitation on the text of proposed constitutional amendments, the “single subject”
limitation on the text of proposed statutory enactments, and the signature requirements
and filing deadlines for both types of initiative petitions. Challenges based on those
requirements may be asserted prior to the election. Blunt, 799 S.W.2d at 828 (rejecting
8
Constitutional challenges to the operation and effect of statutory or constitutional provisions
proposed through the initiative process are matters of such gravity and import that they are
ill-suited to expedited, hypothetical-laced litigation under section 116.200.1. This Court should
no more presume that the people will pass an unconstitutional measure than that their general
assembly would do so but, where such issues arise with respect to a law enacted by the general
assembly, they are given the full benefit and careful consideration that strict enforcement of
issues such as ripeness and standing can produce, and only after (and if) it is enacted. Measures
enacted through the initiative process deserve no less. To do otherwise is to “sacrifice the
democratic process to the interest of judicial economy.” State ex rel. Dahl v. Lange, 661 S.W.2d
7, 8 (Mo. banc 1983) (refusing to review pre-election constitutional challenges because doing so
“could effectively enjoin the amendment from being placed on the ballot because of conjecture
that it would be found unconstitutional if passed and adopted by the voters”). To be sure, this
Court has crossed this line and entertained a pre-election challenge to the substantive effect of an
ordinance proposed by initiative petition at least once in the past. See State ex rel. Cranfill v.
Smith, 48 S.W.2d 891, 894 (Mo. banc 1932) (“the ordinance, if adopted, would be
unconstitutional and of no force or effect, because the condemnation of the company’s property
in such manner would result in depriving the company of its property without due process of
law. Section 1, Amendment 14, Const. of U. S.; section 30, art. 2, Const. of Mo.”). And, in
more recent cases, this Court occasionally has suggested that it would entertain a pre-election
constitutional challenge based on the hypothetical application of a measure proposed by initiative
petition if the issue of law raised is “so clear or settled as to constitute matters of form.”
Craighead v. City of Jefferson, 898 S.W.2d 543, 545 (Mo. banc 1995). But this approach baits
far more hooks than it catches fish and, in so doing, it forces litigants and courts to give hurried
treatment to serious issues that merit thorough review regardless of how clear they may seem in
the abstract. In light of the expedited procedures required by section 116.200, Brown clearly
steers the better path by elevating the initiative process, which the people of this state have
reserved to themselves in article III, section 49, of the Missouri Constitution, above the mere
possibility that pre-election consideration of such issues will better serve judicial economy.
24
the argument that “courts of this state lack authority to conduct a pre-election
examination of an initiative petition to determine whether it complies with the provisions
of article III, § 50.”). To the extent such challenges have been raised by Opponents, this
Court has reviewed and rejected them.
In addition, even though a pre-election challenge to an initiative proposal based on
the “appropriation by initiative” prohibition in article III, section 51, decidedly is a
substantive rather than procedural attack, this Court will entertain such challenges only to
the extent that such a purpose and effect are plainly and unavoidably stated in the
language of the proposal. Healthy Future, 201 S.W.3d at 510. For the reasons stated
above, however, Opponents’ “appropriation by initiative” claim falls far short of this
standard.
But the remainder of Opponents’ claims have nothing to do with ensuring that the
constitutional prerequisites to the people’s reserved power to propose constitutional
amendments by initiative petition have been followed with respect to Amendment No. 3.
Instead, they focus solely on whether Amendment No. 3 – if and when it is approved by
the voters and put into effect – will (or might) violate various preexisting prohibitions in
the Missouri Constitution. There will be time enough for such claims after the election, if
Missouri voters find Amendment No. 3 to their liking.
25
Conclusion
For the reasons set forth above, the judgment of the trial court is affirmed.
_____________________________
Paul C. Wilson, Judge
Breckenridge, C.J., Fischer, Draper, Teitelman and Russell, JJ.,
and Dowd, Sp.J., concur. Stith, J., not participating.
26