American Civil Liberties Union of Missouri and Sara E. Baker v. John R. Ashcroft

CORRECTED
07/10/2019
In the
Missouri Court of Appeals
Western District
AMERICAN CIVIL LIBERTIES )
UNION OF MISSOURI AND SARA E. )
BAKER, ) WD82880
)
Appellants, ) OPINION FILED: July 8, 2019
)
v. )
)
JOHN R. ASHCROFT, et al., )
)
Respondents. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Special Division: Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge
and Cynthia L. Martin, Judge
The American Civil Liberties Union of Missouri and Sara E. Baker (collectively
"ACLU") appeal a trial court judgment dismissing its verified petition with prejudice and
denying pending motions in a proceeding where the ACLU sought a temporary restraining
order, preliminary and permanent injunctive relief, and declaratory relief from State
officials after a referendum petition sample sheet was rejected. Because the Secretary of
State rejected the sample sheet on constitutional grounds at a point when the Secretary of
State's exclusive authority was limited by section 116.3321 to review of the sample sheet
for sufficiency as to form, we reverse the trial court's judgment, and enter the judgment
that should have been given pursuant to Rule 84.14.
Factual and Procedural Background
Unless otherwise noted, the salient facts are uncontested.2
On May 17, 2019, House Bill No. 126 ("HB 126") passed in the second chamber of
the Missouri General Assembly and was sent to the Governor for approval. On May 24,
2019, Governor Michael Parson signed HB 126 into law.
HB 126 repeals seven statutes (sections 135.630, 188.010, 188.015, 188.027,
188.028, 188.043, and 188.052) and replaces the repealed statutes with seventeen new
provisions. The new provisions all relate to the regulation of abortions. For one of the
seventeen new provisions, section 188.028, an emergency clause applies, as follows:
Because of the need to protect the health and safety of women and their
children, both unborn and born, the repeal and reenactment of section
188.028 of this act is deemed necessary for the immediate preservation of the
public health, welfare, peace and safety, and is hereby declared to be an
emergency act within the meaning of the constitution, and the repeal and
reenactment of section 188.028 of this act shall be in full force and effect
upon its passage and approval.
HB 126, sec. C. The remaining sixteen provisions of HB 126 do not contain an emergency
clause.
1
All statutory references are to RSMo 2016 as supplemented through May, 2019, except as otherwise
noted.
2
The pleadings in this case are limited to the ACLU's verified petition, its motion for interim injunctive
relief with suggestions in support, and suggestions in opposition to that motion. In addition, there was a hearing on
the motion, with arguments made by counsel. The uncontested facts are thus drawn from the facts alleged in the
ACLU's petition and motion for interim injunctive relief that were admitted by the suggestions in opposition to the
motion, or during the hearing on the motion.
2
On May 28, 2019, the ACLU submitted a referendum petition sample sheet
("Sample Sheet") to Secretary of State John ("Jay") R. Ashcroft ("Secretary of State"). The
submission of a sample sheet is required by section 116.332, and is the first step required
to exercise the referendum power reserved in the people by Article III, section 49 of the
Missouri Constitution. The Secretary of State forwarded the Sample Sheet to Attorney
General Eric S. Schmitt ("Attorney General") and to State Auditor Nicole Galloway
("Auditor") to be reviewed and processed as required by section 116.332.
On June 6, 2019, the Secretary of State notified the ACLU that its Sample Sheet
was being rejected on constitutional grounds as follows: "Our legal department has
determined that your referendum is not compliant with Article III, Section 52(a) of the
Missouri Constitution." The Secretary of State concluded that because HB 126 contained
an emergency clause, the act was constitutionally ineligible in its totality for the
referendum process. The Secretary of State reported no other issues warranting rejection
of the Sample Sheet. After rejecting the Sample Sheet, the Secretary of State withdrew the
Sample Sheet from the Attorney General and the Auditor.
On June 6, 2019, the ACLU filed suit in the Circuit Court of Cole County, Missouri
against the Secretary of State, the Attorney General, and the Auditor, in their representative
capacities (collectively referred to as "the State"). The ACLU's verified petition sought a
temporary restraining order, preliminary and permanent injunctive relief, and declaratory
relief. The petition sought a declaration that HB 126 is not subject to an emergency clause
that forecloses exercise of the power of referendum; a declaration that the Sample Sheet
was sufficient as to form and should have been approved; permanent injunctive relief
3
prohibiting the State from rejecting the Sample Sheet on the basis of the emergency clause
applicable to section 188.028 of HB 126; permanent injunctive relief requiring the
Secretary of State to approve the Sample Sheet, to prepare a ballot summary statement, and
to certify the official ballot title; permanent injunctive relief requiring the Auditor to
prepare a fiscal note and fiscal note summary; and permanent injunctive relief requiring
the Attorney General to approve the ballot summary statement and fiscal note.
The ACLU then filed a motion for temporary restraining order and for a preliminary
injunction, and set the motion for hearing on June 11, 2019. The ACLU's motion was
accompanied by suggestions in support which alleged that the Secretary of State had no
authority to consider constitutional matters in connection with his review of the Sample
Sheet for sufficiency as to form pursuant to section 116.332, and that in any event, the
Secretary of State could not rely on the emergency clause applicable to section 188.028 to
reject the Sample Sheet because a court must decide whether an emergency clause is
legitimate, and because the emergency clause did not apply to all of the provisions of HB
126. The ACLU noted the urgency of the circumstances, as it is prohibited from collecting
signatures on a referendum petition until the Sample Sheet is approved, until the fiscal note
and summary are prepared, and until the ballot summary and title are prepared and certified.
The ACLU thus noted the urgency of time, as referendum petitions with sufficient
signatures must be submitted no later than ninety days after adjournment of the general
assembly.
The State filed suggestions in opposition to the motion. The State acknowledged
that the Sample Sheet was rejected based solely on the emergency clause applicable to
4
section 188.028 of HB 126. The State argued that temporary and preliminary injunctive
relief could not be used to compel the Secretary of State to approve the Sample Sheet
because interim injunctive relief is limited to preserving the status quo; that even if the
Secretary of State was obligated to approve the Sample Sheet, the ACLU could not enforce
that obligation because section 116.332 describes directory and not mandatory acts; and
that in the alternative, the exclusive remedy available to the ACLU to compel the Secretary
of State to approve the Sample Sheet is mandamus, relief not sought in the ACLU's petition.
On June 11, 2019, the parties appeared by counsel to argue the ACLU's motion. At
the same time, counsel representing David Humphreys ("Humphreys"), the proponent of a
separate referendum petition addressing HB 126, also appeared. Humphreys' referendum
petition sample sheet had been identically rejected by the Secretary of State. Humphreys
filed his own lawsuit on June 7, 2019 which similarly sought a temporary restraining order,
preliminary and permanent injunctive relief, and declaratory relief.3 Though the ACLU's
and Humphreys' lawsuits were not consolidated, the trial court consolidated the hearing on
the ACLU's and Humphreys' motions for temporary and preliminary injunctive relief.
During a brief hearing on the pending motions where no evidence was taken,4 the
parties repeated their arguments in support of and in opposition to the motions for
temporary and preliminary injunctive relief. After hearing the parties' arguments, the trial
court noted on the record:
I do believe that you're asking me to compel the State actor and the Secretary
of State to do something, so I do think that a writ of mandamus would have
3
This action is styled David Humphreys, et. al. v. John R. Ashcroft, et. al., Case No. 19AC-CC00249.
4
The transcript is only seventeen pages long.
5
to issue from the court. And I think [the State's counsel] is correct, that
neither party has asked me to do that.
So I'll give you a choice. I know that this is a time sensitive case. Do you
want leave to re-file your petition, or do you want me to dismiss it and you
re-file? Or do you need a minute to talk . . . about that?
The trial court clarified that if leave to amend was afforded, the court presumed the parties
would amend their petitions to add a request for a writ of mandamus. Alternatively, the
trial court indicated it would "dismiss this case and you can re-file it." The ACLU and
Humphreys were granted leave to file amended petitions by June 13, 2019, and the parties
were directed to reconvene on June 17, 2019.
The ACLU did not file an amended petition.5 On June 13, 2019, the trial court
entered its order and judgment ("Judgment") in the ACLU's case as follows:
Being fully advised, the Court dismisses [the ACLU's] petition and all claims
with prejudice.
IT IS THEREFORE ORDERED AND DECREED:
1. [The ACLU's] petition is dismissed with prejudice.
2. All pending motions are overruled.
On June 19, 2019, the ACLU filed this appeal.
Expedited Disposition of Appeal
We have expedited the disposition of this appeal. Pursuant to Article III, section
52(a) of the Missouri Constitution, "[r]eferendum petitions shall be filed with the secretary
of state not more than ninety days after the final adjournment of the session of the general
5
Humphreys did file an amended petition which added a request for a writ of mandamus. That request for a
writ of mandamus was summarily denied without prejudice on June 17, 2019, and all other claims in Humphreys'
amended petition were dismissed with prejudice. Humphreys' dismissed lawsuit is not the subject of this appeal.
6
assembly which passed the bill on which the referendum is demanded." Section 116.100
provides that "[t]he secretary of state shall not accept any referendum petition submitted
later than 5:00 p.m. on the final day for filing referendum petitions." Section 116.334
prohibits the proponent of a referendum petition from beginning the signature collection
process essential to filing a referendum petition until the steps described in sections
116.332 and 116.334 have been completed, one of which is the secretary of state's6
approval of a referendum petition sample sheet as sufficient as to form. The Secretary of
State's rejection of the Sample Sheet has thus thwarted the ACLU's ability to proceed with
signature collection, and has the effect of compressing the already limited time available
to exercise the power of referendum.
Standard of Review
The trial court's Judgment dismissed the ACLU's petition with prejudice, and thus
dismissed the petition's claims for declaratory and permanent injunctive relief. The
Judgment also denied the ACLU's pending motion for interim injunctive relief.
The denial of interim injunctive relief is ordinarily interlocutory and ineligible for
appellate review.7 In any event, the Judgment's denial of the ACLU's motion for interim
injunctive relief is mooted by the Judgment's dismissal with prejudice of the ACLU's
requests for declaratory and permanent injunctive relief. We limit our review on appeal,
6
We refer generally to the office of the secretary of state without capitalizations.
7
"[O]rders entered during the temporary injunction stage are not final, appealable orders. . . . No appeal lies
from the denial of a preliminary injunction." Eickelmann v. Eickelmann, 724 S.W.2d 261, 262 (Mo. App. W.D.
1986) (other citations omitted). But see, Furniture Mfg. Corp. v. Joseph, 900 S.W.2d 642, 646 (Mo. App. W.D.
1995) (holding that an appeal from the denial of interim injunctive relief may be warranted where "the practical
effect of a dismissal of the appeal would be to deprive the appellant of any equitable relief altogether").
7
therefore, to the Judgment's dismissal with prejudice of the petition's claims for declaratory
relief and permanent injunctive relief.
When the Judgment was entered, no written motion to dismiss, for judgment on the
pleadings, or for summary judgment, was pending. However, the State's suggestions in
opposition to the ACLU's motion for interim injunctive relief, along with the State's
argument at the hearing on the motion, clearly reflect the State's position that the ACLU's
petition was without merit as a matter of law, even assuming all facts therein stated were
true: (i) because the Secretary of State's obligation to review and approve a referendum
petition sample sheet is merely directory and not mandatory, and cannot be compelled; (ii)
because the Secretary of State acted within his authority to reject the Sample Sheet because
HB 126 includes an emergency clause, and the Missouri Constitution prohibits exercise of
the power of referendum in connection with an act that includes an emergency clause; and
(iii) because in any event, mandamus is the exclusive remedy available to compel a State
actor to do that which is required by statute, and mandamus was not pled.
Because the trial court dismissed the ACLU's petition with prejudice before any
evidence was taken, we conclude that the Judgment was in the nature of a judgment on the
pleadings. "A trial court properly grants a motion for judgment on the pleadings if, from
the face of the pleadings, the moving party is entitled to judgment as a matter of law." State
ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 134 (Mo. banc 2000).
Ordinarily, that requires us to treat all well-pleaded facts as admitted for purposes of our
review. See Emerson Electric Co. v. Marsh & McLennan Companies, 362 S.W.3d 7, 12
(Mo. App. W.D. 2012). Here, there are no salient facts in dispute. Instead, the only issues
8
before us are legal questions: whether the Secretary of State acted in excess of his statutory
authority by rejecting the Sample Sheet on constitutional grounds, and if so, whether the
ACLU is entitled to compel the Secretary of State to approve the Sample Sheet with
permanent injunctive relief. We address these legal issues de novo. Jones v. Fite, 207
S.W.3d 614, 616 (Mo. banc 2006) (holding that where the issue on review is "purely a legal
one," we "review[] the trial court's judgment de novo").
Analysis
The ACLU raises a single point on appeal. The ACLU alleges that it was error to
dismiss its petition with prejudice because: (i) the Secretary of State had no authority to
review the Sample Sheet at this stage in the referendum process except for its sufficiency
as to form; (ii) there is no emergent public need that justifies expediting an effective date
for any section of HB 126; and (iii) even if an emergency clause is properly invoked as to
section 188.028 of HB 126, that does not deprive the people of the power of referendum
for the remaining sixteen sections of the act which are not subject to an emergency clause.
As we hereinafter explain, the ACLU's appeal can be resolved by addressing only
the first of these multiple claims.8 That resolution requires us to explain the people's
reserved power of referendum, and to analyze the parameters of the secretary of state's
statutory authority to review referendum petitions, including sample sheets.
8
The ACLU's point on appeal violates Rule 84.04, as it identifies three distinct and separate reasons why
the trial court's Judgment is allegedly in error. Kirk v. State, 520 S.W.3d 443, 450 n. 3 (Mo. banc 2017) (holding a
point relied on violates Rule 84.04 if "it groups together multiple, independent claims rather than a single claim of
error"). A multifarious point on appeal preserves nothing for appellate review. Id. However, as explained in this
Opinion, resolution of the first claim raised in the ACLU's multifarious point on appeal is sufficient to resolve this
appeal. We therefore exercise our discretion to review the merits of the first claim raised in the ACLU's point on
appeal. See Griffitts v. Old Republic Insurance Company, 550 S.W.3d 474, 478 (Mo. banc 2018); Spence v. BSNF
Ry. Co., 547 S.W.3d 769, 779 n. 12 (Mo. banc 2018).
9
The Power of Referendum
Article III, section 49 of the Missouri Constitution expressly reserves to the people
the "power to approve or reject by referendum any act of the general assembly, except as
hereinafter provided." The "'[p]urpose of referendum is to suspend or annul a law which
has not gone into effect and to provide the people a means of giving expression to a
legislative proposition, and require their approval before it become[s] operative as a law[.]'"
Stickler v. Ashcroft, 539 S.W.3d 702, 713 (Mo. App. W.D. 2017) (quoting State ex rel.
Moore v. Toberman, 250 S.W.2d 701, 706 (Mo. banc 1952) (citation omitted)).
Consistent with this purpose, the "exception" to the people's referendum power
referred to in article III, section 49 is set forth in article III, section 52(a) of the Missouri
Constitution, which provides in pertinent part as follows:
A referendum may be ordered (except as to laws necessary for the immediate
preservation of the public peace, health or safety, and laws making
appropriation for the current expenses of the state government, for the
maintenance of state institutions and for the support of public schools)[.]
The portion of the aforesaid exception addressing laws necessary for immediate
preservation of the public peace, health or safety recognizes that the general assembly has
the constitutional authority pursuant to article III, section 29 to express an emergency "in
the preamble or in the body of [an] act" as to permit an act to take immediate effect. This
is in lieu of the ordinary proscription that a law does not "take effect until ninety days after
adjournment of the session . . . at which it was enacted." Art. III, sec. 29 Missouri
Constitution.
10
Here, an emergency clause applied to section 188.028. The emergency clause
employed language drawn directly from the exception to the power of referendum
described in article III, section 52(a) of the Missouri Constitution. The parties disagree
about whether the general assembly's declaration of emergency is self-actuating as to defeat
the power of referendum as a matter of law, or instead remains subject to judicial review
to determine its legitimacy. And the parties disagree about whether an emergency clause
can circumvent the people's power of referendum when it is only attached to one of multiple
provisions in an act.
These disputed legal issues are important ones, and are the subject of the second and
third claims raised in the ACLU's point on appeal.9 However, these legal issues need not
be addressed or resolved, unless the Secretary of State's statutory authority to review the
Sample Sheet for sufficiency as to form included the authority to consider the effect of the
emergency clause in section 188.028. We therefore turn our attention to the secretary of
state's statutory authority to review referendum petition sample sheets, the subject of the
first claim raised by the ACLU's point on appeal. No Missouri case has addressed the
parameters of the secretary of state’s authority to review a referendum petition sample sheet
for sufficiency as to form, rendering this an issue of first impression.
The Secretary of State's Authority to Review Referendum Petition Sample Sheets
The process for exercising the power of referendum authorized by the Missouri
Constitution is described in chapter 116. Chapter 116 describes two occasions where the
9
An amicus brief was filed on behalf of Speaker Elijah Haahr, Representative Nick Schroer, and President
Pro Tem Dave Schatz in support of the Secretary of State and the Attorney General. The amicus brief was limited in
its discussion to these two issues.
11
secretary of state's review is required during the referendum process: (i) the pre-signature
collection review of a sample sheet authorized by section 116.332; and (ii) the post-
signature collection review of a submitted referendum petition and its signatures authorized
by section 116.120. See Bradshaw v. Ashcroft, 559 S.W.3d 79, 86 (Mo. App. W.D. 2018)
(explaining that "chapter 116 bifurcates the secretary of state's authority with respect to the
initiative [and referendum] process into two stages: the pre-signature collection stage and
the post-signature collection stage").
The first step taken to initiate the referendum process is a proponent's submission
of a referendum petition sample sheet. Before a referendum petition can be circulated for
signatures, "a sample sheet must be submitted to the secretary of state in the form in which
it will be circulated." Section 116.332.1. The secretary of state is then obligated to "refer
a copy of the petition sheet to the attorney general for his approval and to the state auditor
for purposes of preparing a fiscal note and fiscal note summary." 10 Id. "The secretary of
state and attorney general must each review the petition for sufficiency as to form and
approve or reject the form of the petition, stating the reasons for rejection, if any." Id. The
attorney general must forward his rejection of the petition as to form with comments, or
his approval of the petition as to form, to the secretary of state within ten days.11 Section
10
The Auditor did not file a brief in this appeal, because, as she advised this Court by letter dated June 27,
2019, following the Secretary of State's referral of the Sample Sheet to her pursuant to section 116.332.1, the
Auditor complied with her statutory obligation to prepare a fiscal note and fiscal note summary as required by
section 116.175.2. The Auditor advised this Court that she has already sent her fiscal note and fiscal summary to the
Attorney General for review pursuant to section 116.175.4, and that once the Attorney General's approval is
received, she will immediately send the fiscal note and fiscal note summary to the Secretary of State.
11
During oral argument, the Attorney General's office confirmed that it is the office's ordinary practice to
publish, as an opinion of the Attorney General, the Attorney General's recommended approval or rejection of a
submitted sample sheet, along with the reasons therefore. No such opinion has been published by the Attorney
General for the ACLU's Sample Sheet. However, the Attorney General opinions that are publicly posted expressly
12
116.332.3. However, "[t]he secretary of state shall . . . make [the] final decision as to the
approval or rejection of the form of the petition." Section 116.332.4. Within fifteen days
of submission of the petition sample sheet, the secretary of state shall send written notice
to the person who submitted the petition sample sheet either that the sample sheet has been
approved as to form, or rejected as to form. Id. If the secretary of state rejects the petition
sample sheet as to form, the written notice of same shall include "the reasons for rejection."
Id.
If a referendum petition sample sheet is approved, the secretary of state must make
the sample petition available on the secretary of state's website to provide a fifteen day
public comment period. Section 116.334.1. And, within twenty-three days of approval of
the sample sheet, the secretary of state is required to "prepare and transmit to the attorney
general a summary statement of the measure," which the attorney general must thereafter
approve as to "legal content and form" within ten days. Id.
Collectively, the procedures described in sections 116.332 and 116.334 could take
as long as forty-eight days. Section 116.332.4; section 116.334.1. A referendum petition
proponent cannot begin collecting signatures, however, until all of the steps required by
section 116.332 and section 116.334 have been completed by the State. Section 116.334.2.
At the same time, a referendum petition with the requisite number of signatures must be
submitted no later than "ninety days after the final adjournment of the session of the general
state that review is pursuant to section 116.332, and is "simply for the purpose of determining sufficiency as to
form," and that the fact the Attorney General has not rejected the sample sheet "is not to be construed as a
determination that the petition is sufficient as to substance." See https://ago.mo.gov/other-resources/ag-
opinions/opinions-2010---2019/2019-opinions
13
assembly which passed the bill on which the referendum is demanded." Art. II, sec. 52(a),
Missouri Constitution. It is self-evident, therefore, that delays in the State's performance
of its obligations in the pre-signature collection stage of the referendum process can have
the practical effect of foreclosing meaningful exercise of the power of referendum.
Sections 116.332 repeatedly uses the phrase "sufficiency as to form" to describe the
secretary of state's statutory authority during the "pre-signature collection stage" of the
referendum process to approve or reject a sample sheet. Though the phrase "sufficiency as
to form" in section 116.332 is not afforded an express statutory definition, section 116.030
effectively serves as the definition for the phrase, as it addresses the required form of a
referendum petition sample sheet, and includes an exemplar form. Importantly, section
116.030 provides that the exemplar form "shall be substantially the form of each page of
referendum petitions on any law passed by the general assembly of the State of Missouri,"
and that "[i]f this form is followed substantially and the requirements of section 116.050
and section 116.08012 are met, it shall be sufficient, disregarding clerical and merely
technical errors." (Emphasis added.)
Because section 116.030 describes the required form of a referendum petition
sample sheet, and directs that a sample sheet in substantially the form of the exemplar form
12
"Section 116.050 addresses other requirements for the form of [referendum] petitions, including page
size, the requirement that each page of the [referendum] petition attach or contain a full and correct text of the
proposed measure, and the format and content of the full and correct text of the proposed measure." Bradshaw, 559
S.W.3d at 84 (citing sections 116.050.1 and .2). Section 116.050 also requires the form of initiative and referendum
petitions to “conform to the provisions of Article III, Section 28 and Article III, Section 50 of the constitution and
those of this chapter.” Article III, section 28 addresses the reviving, renewing or amendment of bills, and is thus not
applicable to the referendum process. Article III, section 50 addresses the signatures requirements for initiative
petitions, and by its plain terms is not applicable to referendum petitions. "Section 116.080 addresses the required
qualifications of and registration requirements for an initiative petition circulator[.]" Id. (citing section 116.080.1).
No party argues that sections 116.050 or 116.080 are of any relevance in this case.
14
"shall be sufficient," we conclude that the phrase "sufficiency as to form" in section
116.332 refers to whether a sample sheet is in substantially the form required by section
116.030. "When determining the legislative intent of a statute, no portion of the statute is
read in isolation, but rather the portions are read in context to harmonize all of the statute's
provisions." BASF Corp. v. Dir. of Revenue, 392 S.W.3d 438, 444 (Mo. banc 2012) (per
curiam).
This conclusion happens to comport with the plain and ordinary dictionary meaning
of the word "form" when used in a context that is relevant to sample sheets. See R.M.A. by
Appleberry v. Blue Springs R-IV School District, 568 S.W.3d 420, 431 (Mo. banc 2019)
(holding terms in a statute that are not defined assume their plain and ordinary dictionary
definition). The word "form," when referring to a form of document, means: "4 a : manner,
method, or style (as of proceeding) b : established method of expression or practice : fixed
or formal way or proceeding : procedure according to rule or rote c : a prescribed and . . .
set order of words . . . . e (1) : a printed or typed document with blank spaces for insertion
of required or requested specific information . . . ." WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 892 (1993). Consistent with this dictionary
definition, section 116.030 provides an exemplar form that uses a prescribed and set order
of words, with blank spaces for insertion of required or requested information; and that
directs that a submitted sample sheet "shall be sufficient" if its form is substantially in
compliance with the exemplar.
Neither section 116.030 nor the dictionary definition of "form" permit the
conclusion that review of a sample sheet for "sufficiency as to form" pursuant to section
15
116.332 extends to matters of substance, including constitutional compliance. Instead, the
phrase "as to form" plainly qualifies the secretary of state's authority to review the
sufficiency of a sample sheet, an observation that is compelling in and of itself, as the
qualifier "as to form" would be rendered unnecessary and superfluous if review of a sample
sheet for "sufficiency" extended to all matters, including substantive and constitutional
matters. "When interpreting a statute, this Court must give meaning to every word or
phrase of the legislative enactment." State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479
(Mo. banc 2013). "Courts never presume that our legislature acted uselessly and should
not construe a statute to render any provision meaningless." Caplinger v. Rahman, 529
S.W.3d 326, 332 (Mo. App. S.D. 2017) (en banc).
Bolstering this conclusion is section 116.120, which addresses the secretary of
state's authority to review the sufficiency of a referendum (or initiative) petition submitted
after signatures have been collected, and thus as a part of the "post-signature collection
stage" of the referendum process. Bradshaw, 559 S.W.3d at 86 (explaining that the
secretary of state's review authority during exercise of the initiative or referendum process
is bifurcated into the pre-signature collection stage addressed in section 116.332 and the
post-signature collection stage addressed in section 116.120). Section 116.120.1 provides
in part that:
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.
(Emphasis added.) Section 116.120 continues to describe the guidelines and processes to
be employed by the secretary of state to determine the validity of signatures on a
16
referendum (or initiative) petition. Importantly, in sharp contrast to the qualified authority
extended to the secretary of state in section 116.332 to review a sample sheet for sufficiency
as to form, section 116.120 authorizes the secretary of state to review a submitted
referendum petition to determine compliance with the Constitution of Missouri and the
provisions of chapter 116. "[I]f different terms are used in different subsections of [a]
statute, then the legislature intended the terms to have different meaning and effect." City
of Cape Girardeau v. Elmwood Farms, L.P., 2019 WL 1029634 at *2, (Mo. App. S.D.
April 11, 2019) (citation omitted).
Based on the plain and unambiguous language of section 116.332, particularly when
considered along with section 116.120.1, we conclude that the secretary of state's authority
to review a referendum petition sample sheet for sufficiency as to form is limited to
determining whether the sample sheet is substantially in the form required by section
116.030, and if it is, that the secretary of state shall deem the sample sheet sufficient.
Section 116.030. Correspondingly, we conclude that the secretary of state's authority to
review a referendum petition sample sheet for sufficiency as to form does not extend to
substantive matters including, without limitation, determining compliance with the
Missouri Constitution.13
13
We do not address, and express no opinion about, the effect of a submitted referendum petition on the
suspension of the effective date of a referred act, should the secretary of state determine pursuant to section 116.120
that a submitted referendum petition fails to comply with the Missouri Constitution. See Article III, section 52(b) of
the Missouri Constitution which provides that “[a]ll elections on measures referred to the people shall be had at the
general state elections . . . . Any measure referred to the people shall take effect when approved by a majority of the
votes casts there on, and not otherwise.” That issue is beyond the scope of this Opinion.
17
Bifurcated review during the referendum process pursuant first to section 116.332,
and then to section 116.120, and constrained by markedly different statutory authority,
prevents the people's reserved referendum power from being summarily and effectively
foreclosed at the pre-signature collection stage by a sufficiency determination that extends
beyond the simple form of the sample sheet. Because the proponent of a referendum
petition cannot begin to collect signatures unless the sample sheet is approved, rejection of
a sample sheet based on the secretary of state's belief that a proponent is not constitutionally
authorized to exercise the referendum power effectively forecloses the exercise of that
power, given the short amount of time available to gather the requisite number of required
signatures before a referendum petition can be submitted. In contrast, though a sample
sheet is reviewed and approved as sufficient as to form pursuant to section 116.332, the
secretary of state nonetheless retains the right to conduct broader review of a submitted
referendum petition (complete with signatures) for compliance with the constitution and
the provisions of chapter 116.14 Section 116.120.1.
The aforementioned sections of chapter 116 reflect a calculated intent by the general
assembly to balance procedural oversight of the referendum process with the people's
ability to meaningfully exercise the power of referendum. Were we to construe section
116.332 to afford the secretary of state the authority to reject a referendum petition sample
14
Following section 116.120 review of a submitted referendum petition, the secretary of state must decide
whether (or not) to certify the petition for inclusion on the ballot. Section 116.150. After that decision is made, any
citizen, including the proponent of the referendum petition, can bring an action in the Cole County Circuit Court
within ten days to compel the secretary of state to reverse his decision to certify (or not) the petition for inclusion on
the ballot. Section 116.200.1. The court’s resolution of that dispute then controls whether the referendum petition
will appear on the ballot. Section 116.200.2.
18
sheet for a reason other than its sufficiency as to form as defined by section 116.030, we
would be sanctioning a process that could potentially foreclose exercise of the power of
referendum, as litigating the rejection of a sample sheet on substantive or constitutional
grounds before signatures can be collected erects a nearly insurmountable obstacle to
exercise of the power of referendum. We will not construe section 116.332 to impede the
people's power of referendum, particularly when the plain and unambiguous language of
section 116.332 supports a construction that preserves meaningful exercise of the power.
Our Supreme Court has explained that our courts "zealously guard" the powers reserved
by the people in the Missouri Constitution. Boeving v. Kander, 496 S.W.3d 498, 506 (Mo.
banc 2016). As such, "'[c]onstitutional and statutory provisions relative to initiative [and
referendum] are liberally construed to make effective the people’s reservation of that
power.'" Id. (quoting Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d
824, 827 (Mo. banc 1990)).
The Secretary of State Rejected the ACLU's Sample Sheet for a Reason that was not
Related to the Sufficiency as to Form of the Sample Sheet
When the Secretary of State rejected the ACLU's Sample Sheet, he explained in
writing his basis for doing so as required by section 116.332.4, and noted that because of
the emergency clause in section 188.028 of HB 126, it was legal counsel's opinion that the
Missouri Constitution prohibited exercise of the power of referendum. For the reasons we
have explained, the Secretary of State's rejection of the Sample Sheet on constitutional
grounds was not authorized by section 116.332. The Secretary of State's statutory authority
to review the Sample Sheet pursuant to section 116.332 was limited to determining whether
19
the Sample Sheet was sufficient as to form pursuant to section 116.030, a review that does
not include determining compliance with the Missouri Constitution.15
The Secretary of State did not identify any other issue with the Sample Sheet, and
has not asserted that the Sample Sheet failed to substantially comply with the exemplar
form in section 116.030. The Secretary of State was therefore obligated by section 116.332
to approve the Sample Sheet as sufficient as to form within fifteen days of its submission.
See also section 116.030.
The trial court therefore committed legal error when it dismissed the ACLU's
petition with prejudice. The ACLU's petition asserted a claim for declaratory relief, and
properly sought a declaration that the Secretary of State had no authority to reject the
Sample Sheet on constitutional grounds, and was instead required to approve the Sample
Sheet as sufficient as to form.
The Secretary of State argues that even if we conclude (which we have) that the
ACLU was entitled to a declaratory judgment declaring that the Secretary of State was
required to approve the Sample Sheet as sufficient as to form, the ACLU cannot enforce
that determined right. First, the Secretary of State alleges that the ACLU cannot remediate
15
We are cognizant that in addressing pre-election constitutional challenges to ballot measures, our cases
have held that pre-election challenges to an initiative or referendum petition can only be conducted by the courts if
the challenge raises a "threshold issue[] that affect[s] the integrity of the election itself," and when the constitutional
issue is so clear a violation of required procedure that it "constitute[s] a matter of form." Brown v. Carnahan, 370
S.W.3d 637, 645 (Mo. banc 2012) (quotation omitted); see also Missouri Electric Cooperatives v. Kander, 497
S.W.3d 905, 912 (Mo. App. W.D. 2016). That discussion, however, is limited in its relevance to the issue of
ripeness, and addresses the judiciary's limited authority to intervene or interfere in the initiative or referendum
process. Brown, 370 S.W.3d at 645; Missouri Electric Cooperatives, 497 S.W.3d at 912. Determining whether a
pre-election constitutional challenge to a ballot measure is ripe for judicial review is a wholly separate inquiry from
determining the secretary of state's statutory authority pursuant to section 116.332 to review a sample sheet for
"sufficiency as to form."
20
the Secretary of State's failure to approve the Sample Sheet because that obligation is
merely directory, and not mandatory, in nature. Second, the Secretary of State argues that
even if the obligation to approve the Sample Sheet can be enforced, mandamus and not
injunctive relief is the only available means to do so.16 We address these claims in turn.
It is Irrelevant Whether the Secretary of State's Obligations under Section 116.332 are
Directory or Mandatory because the ACLU is not Seeking a Sanction for the Secretary
of State's Failure to Comply
The Secretary of State argues that even though section 116.332 provides that the
secretary of state "must" review a referendum petition sample sheet for sufficiency as to
form and approve or reject the form of the petition, and "shall" send written notice if the
sample sheet is rejected with fifteen days of its submission stating the reasons for rejection,
a proponent of a referendum petition has no remedy if the secretary of state fails to take
16
The Secretary of State and the Attorney General argue that the ACLU's appeal must be dismissed because
the ACLU's point on appeal has not challenged the Judgment on a basis on which it could be affirmed--namely, that
mandamus is the only means available to compel the Secretary of State to approve the Sample Sheet. We disagree.
The Judgment dismissed the ACLU's petition with prejudice. During argument on the ACLU's motion for interim
injunctive relief, the trial court expressed no intent to dismiss the ACLU's petition with prejudice based on the
ACLU's failure to request a writ of mandamus. Instead, the trial court said it would either grant the ACLU leave to
amend its petition, or it would dismiss the petition and permit the ACLU to re-file--a dismissal that would have been
without prejudice.
Moreover, even if we disregard the trial court's on-the-record comments, the Judgment dismissing the
ACLU's petition with prejudice cannot be affirmed based on the ACLU's failure to request a writ of mandamus, as
that issue had nothing to do with the merits of the ACLU's independent claim for a declaration that the Secretary of
State exceeded his statutory authority when he rejected the Sample Sheet. The State does not challenge the ACLU's
ability to seek a declaratory judgment to this effect--a claim that stands alone, and is independent of, any remedy the
ACLU might seek to enforce a determined right. The Judgment's dismissal with prejudice of the declaratory
judgment claim cannot be explained based on the ACLU's failure to request a writ of mandamus.
Finally, the ACLU's request for permanent injunctive relief is not a legal theory that can independently
support (or fail to support) a right of recovery, and thus is not a "claim," the merits (or lack thereof) of which could
have supported dismissal of the ACLU's petition with prejudice so early in the proceedings. "[A]n injunction is a
remedy and not a cause of action; therefore it must be based on some recognized and pleaded legal theory." Goerlitz
v. Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011). The only recognized and pleaded legal theory in the ACLU's
petition was the claim for a declaratory judgment. Whether an injunction was available as a remedy to enforce
rights declared pursuant to this claim is not an issue that could have supported the entry of a Judgment dismissing
the petition with prejudice. The trial court plainly recognized this fact, as it never threatened to dismiss the ACLU's
petition with prejudice based solely on the failure to request a writ of mandamus.
The Secretary of State's and Attorney General's motion to strike portions of the ACLU's Reply Brief and to
dismiss the ACLU's appeal is denied.
21
these admittedly required steps, or takes the steps in a manner that exceeds the secretary of
state's statutory authority. The Secretary of State argues that because section 116.332 does
not impose a sanction on the secretary of state for non-compliance with the obligation to
approve a sample sheet, the obligation is merely directory and not mandatory, and the
courts are not free to fashion a sanction.
The Secretary of State relies on the Missouri Supreme Court's holding in Frye v.
Levy, 440 S.W.3d 405 (Mo. banc 2014). Frye is irrelevant to this case. In Frye, a statute
obligated the Children's Division to complete a hotline investigation within ninety days,
but did not prescribe the effect should the Children's Division fail to do so. Id. at 408. A
parent who was the subject of a hotline investigation took the position that the Children's
Division's failure to complete its investigation within ninety days resulted in the Division
losing all authority to make the abuse determinations permitted by the statute. Id. The
Supreme Court framed the issue before it as follows:
[W]hen (but only when) a statute imposes an obligation, the statutory
construction question embodied in the distinction between "mandatory
statutes" and "directory statutes" is whether the legislature intended to make
all actions that fail to comply with that obligation void or ineffective.
Id. at 409. Determining whether the statute at issue was directory or mandatory was thus
necessary because the parent sought a sanction for non-compliance—voiding or rendering
ineffective the Division's authority to investigate an abuse claim. Id. at 408. ("[t]he central
issue in this case is not whether 'shall' means 'shall' but what sanction (if any) the legislature
intended to apply when the Division fails to do what section 210.152.2 says it 'shall' do.).
22
In contrast to the parent in Frye, the ACLU is not arguing that the Secretary of State
failed to make a decision about its Sample Sheet within 15 days as required by statute. The
ACLU is not arguing that the Secretary of State’s authority to review the referendum
process has been voided or is now ineffective. Instead, the ACLU is arguing that the
Secretary of State employed a standard for reviewing the sufficiency of its Sample Sheet
that exceeded the Secretary of State's statutory authority. The ACLU is not seeking a
sanction for the Secretary of State's act in excess of his authority. It is instead seeking to
compel the Secretary of State to comply with his statutory obligations. In Frye, the
Supreme Court recognized the difference:
Mother is not seeking a declaration that the Division had [a duty to complete
its investigation in ninety days], nor is she seeking a writ of mandamus to
compel the Division to perform that duty.
Id. at 408. In other words, the parent in Frye was not seeking to compel the Division to
complete its investigation. It was attempting to sanction the Division for failing to timely
complete its investigation. By highlighting what the parent in Frye was not seeking, the
Supreme Court necessarily limited the relevance of its discussion about the directory or
mandatory nature of a statute to scenarios where a sanction is sought to "punish" non-
performance of a statutory obligation.
Because the ACLU is not seeking a sanction for the Secretary of State's non-
performance of a statutory obligation, and is instead seeking to compel the Secretary of
State to perform a statutory obligation, Frye is not applicable to this case. There is no
authority whatsoever cited by the Secretary State for the proposition that a State actor
cannot be compelled to perform a duty or act required by statute.
23
Mandamus is not the Only Remedy Available to Compel the Secretary of State to Perform
as Required by Section 116.332
The Secretary of State alternatively argues that if the Secretary of State's obligation
to approve the Sample Sheet as sufficient as to form can be compelled, it can only be
compelled by a writ of mandamus, relief not sought by the ACLU. The Secretary of State
relies on State ex rel. Westhues v. Sullivan, 224 S.W. 327 (Mo. banc 1920) for the
proposition that in challenging the Secretary of State's action under chapter 116, there are
but two remedies: "(1) mandamus against the Secretary of State, in an action by a citizen,
if such Secretary refuses to accept and file a legally sufficient petition; and (2) an injunction
against such Secretary if he accept and file a legally insufficient petition." Id. at 333.
According to the State, the ACLU's challenge falls into the first category, leaving
mandamus as the only remedy available to compel the Secretary of State to act.
The Secretary of State’s reliance on Westhues is misplaced. The State neglects to
mention that the quoted material it cites from Westhues is not a holding, but merely a
restatement by the court of the content of a statute then in effect, section 6750, R.S. 1909.
In Westhues, our Supreme Court was asked to address the prematurity of a judgment
enjoining the secretary of state from accepting a referendum petition that had not yet been
filed. Id. at 332. The Supreme Court noted that resolution of the issue of prematurity was
"determined by our statute (section 6750, R.S. 1909)" which provided the two remedies
referenced in the Secretary of State's quote from the case. In other words, the statute in
effect at the time controlled the remedies available, and directed mandamus where the
secretary of state refused to accept and file a legally sufficient petition, and an injunction
24
where the secretary of state accepted and filed a legally insufficient petition. Because the
statute did not contemplate a remedy to prevent the filing of a petition, our Supreme Court
reversed the trial court's judgment imposing an injunction. Id. at 342.
Westhues does not hold, therefore, that mandamus is the exclusive remedy available
to compel the secretary of state to accept a filing. At best, Westhues addressed the remedies
provided by a statute. That statute, section 6750, R.S. 1909, is no longer in force and effect,
and has been replaced in substance by what is now section 116.200. As we have previously
explained,17 section 116.200 addresses any citizen's right to file an action to compel the
secretary of state to reverse a decision to certify (or not) a submitted referendum (or
initiative) petition for inclusion on the ballot. Section 116.200 applies only to the secretary
of state's post-signature collection review and certification of a submitted referendum (or
initiative) petition pursuant to sections 116.120 and 116.150. Section 116.200 does not
apply to the secretary of state's pre-signature collection review of a sample sheet for
sufficiency as to form. And even if it did, section 116.200 does not identify or limit the
"remedy" which can be employed to compel the secretary of state to reverse a petition
certification decision.
It is noteworthy, in fact, that our Supreme Court observed in Westhues that "[t]his
statute [section 6750, R.S. 1909)] does not rob the courts of their power to use the equitable
remedy of injunction, but it is a reasonable [statutory] limitation on the use of that remedy
by the courts," referring to the fact that "[t]he purpose of fixing the point [by statute] at
17
See footnote 14, supra.
25
which the courts can intervene by injunction is to give the state officer the right to first act,
and should he act wrongfully, . . . the courts can then intervene by injunction, to the end
that the very rights of the matter may be found." Id. at 333. That is exactly the scenario
before us. Despite the Secretary of State's claim to the contrary, the ACLU is not seeking
to compel the Secretary of State to accept its Sample Sheet for filing. It is instead seeking
to compel the Secretary of State to reverse the decision to reject the Sample Sheet after it
was filed, and to instead approve the Sample Sheet as required by section 116.332. The
Secretary of State was given the right to first act, is alleged to have acted wrongfully, and
the ACLU now seeks intervention by the courts by injunction as a part of the court's
inherent equitable power "to the end that the very rights of the matter may be found." Id.
We reject, therefore, the Secretary of State's contention that he can only be
compelled by mandamus, and not by injunctive relief, to approve the Sample Sheet. Our
cases recognize that injunctive relief and mandamus are, in fact, akin to one another. As
our Supreme Court noted in State ex rel. Shartel v. Humphreys, 93 S.W.2d 924, 926 (Mo.
1936), "'in those states where the same court is vested with both legal and equitable
jurisdiction (Missouri is such) there is very little difference in its practical results between
proceedings in mandamus and by mandatory injunction. . . ." (quoting 7 McQuillin's
Muncipal Corp. (2d Ed.) section 1975). "Mandatory injunction may be invoked to compel
the undoing of something wrongfully done." Id. at 926-27 (citing 32 C.J. 23; Walther v.
Cape Girardeau, 149 S.W. 36 (Mo. App. St.L. Dist. 1912); Place v. Union Township, 66
S.W.2d 584 (Mo. App. Spring. Dist. 1934)). "However, mandamus has been invoked for
the same purpose." Id. at 927 (citing State ex rel. Snow Steam Pump Works v. Homer, 155
26
S.W. 405 (Mo. 1913)). Similar to a mandatory injunction, "'[t]he purpose of the
extraordinary writ of mandamus is to compel the performance of a ministerial duty that
one charged with the duty has refused to perform.'" Manz v. Prairie Township Fire
Protection Board, 463 S.W.3d 831, 835 (Mo. App. W.D. 2015) (quoting Furlong
Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165-66 (Mo. banc 2006)).
Here, the ACLU's petition requested declaratory relief to first resolve the
controversy regarding the Secretary of State's rights and obligations with respect to review
of the Sample Sheet. "In the context of a declaratory judgment action, a justiciable
controversy exists where the plaintiff has a legally protect[ed] interest at stake, a substantial
controversy exists between parties with genuinely adverse interests, and that controversy
is ripe for judicial determination." Mercy Hosp. E. Cmtys. v. Missouri Health Facilities
Review Comm., 362 S.W.3d 415, 417 (Mo. banc 2012) (internal quotations omitted). The
Secretary of State does not quarrel with the ACLU's right to seek declaratory relief on the
issue of the parameters of the Secretary of State's statutory authority to review the Sample
Sheet for sufficiency as to form.18 Having determined, as explained above, that the ACLU's
claim for declaratory relief is meritorious, Shartel instructs that a permanent (mandatory)
injunction, can be "invoked to compel the undoing of something wrongfully done." 93
S.W.2d at 926.
It is worth noting, in fact, that even had the ACLU requested a writ of mandamus in
lieu of permanent injunctive relief, the issuance of a writ would have remained subject to
18
Recall, as discussed earlier, that in limiting the reach of its discussion in Frye, our Supreme Court
expressly noted that the plaintiff in that case had not sought a declaration that a State actor failed to act as required
by statute, strongly suggesting that such relief is available. 440 S.W.3d at 408.
27
the trial court's discretion. "Mandamus is a discretionary writ, not a writ of right." State
ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994) (citation omitted).
Moreover, "[m]andamus will lie only when there is a clear, unequivocal, and specific
right." Id. (citation omitted). The Secretary of State contests whether section 116.332
imposes a clear, unequivocal and specific duty to approve the Sample Sheet, and goes so
far as to argue that the obligation to do so is merely directory and not mandatory. Because
the parameters of the Secretary of State's statutory authority to review a sample sheet for
sufficiency as to form is a matter of first impression, it can hardly be said that the
declaratory relief the ACLU sought on that subject addressed a "clearly established and
presently existing" right--the essential requisites to mandamus. Id. (holding mandamus
was "clearly inappropriate" where the "question of whether discovery is available in a
contempt proceeding under section 536.095 has not previously been decided by a Missouri
court") (emphasis added) (citation omitted). We therefore question the availability of
mandamus in this case of first impression, as before any remedy could be imposed, it was
first necessary to adjudicate the extent of the secretary of state's authority to review a
sample sheet for sufficiency as to form pursuant to section 116.332. Id. ("[T]he purpose
of the writ [of mandamus] is to execute, not adjudicate.") (citation omitted). Regardless,
whether mandamus would have been an available remedy in this case or not, mandamus is
not the exclusive means by which the Secretary of State can be compelled to approve the
Sample Sheet.
28
In light of the foregoing discussion, the first claim in the ACLU’s point on appeal
is granted. The second and third claims in the ACLU’s point on appeal are not reached,19
and are denied as moot. To be clear, this Opinion expresses no opinion about, did not need
to decide, and does not decide, whether the emergency clause applicable to section 188.028
of HB 126 is self-actuating to defeat the constitutional power of referendum or is subject
first to a judicial determination of its legitimacy; or whether the emergency clause
applicable solely to section 188.028 of HB 126 defeats the power of referendum for the
remaining sixteen provisions of HB 126 which are not subject to emergency clauses. We
decide only that the Secretary of State had no authority pursuant to section 116.332 to
consider constitutional compliance when reviewing the ACLU's Sample Sheet for
sufficiency as to form, and was instead limited to reviewing the Sample Sheet for
sufficiency as to form as defined by section 116.030.
Conclusion and Entry of Judgment
The trial court's Judgment dismissing the ACLU's petition with prejudice is
reversed. The Secretary of State was without authority under section 116.332 to reject the
Sample Sheet on constitutional grounds. The Secretary of State identified no issues
relating to the sufficiency as to form of the Sample Sheet, and concedes in these
proceedings that the only basis for rejecting the Sample Sheet was on constitutional
grounds. The Secretary of State was thus obligated by section 116.332 to approve the
19
See discussion in footnote 8, supra.
29
Sample Sheet as sufficient as to form, as defined by section 116.030. The ACLU was
entitled to enforce these declared rights by permanent mandatory injunctive relief.
Given the time exigencies in this case, in lieu of remanding this matter for the entry
of a judgment consistent with this Opinion, we exercise our authority under Rule 84.14 to
"give such judgment as the court ought to give" as to dispose finally of this case.20
A Declaratory Judgment is hereby entered in favor of the ACLU and against the
Secretary of State and the Attorney General. Neither the Secretary of State nor the Attorney
General had the statutory authority pursuant to section 116.332 to reject the Sample Sheet
on constitutional grounds, and because no issue with the sufficiency as to form of the
Sample Sheet has been identified, the Secretary of State was obligated by section 116.332
to approve the Sample Sheet within fifteen days of its submission.
Based on these declared rights, judgment is hereby entered in favor of the ACLU
and against the Secretary of State for permanent mandatory injunctive relief compelling
the Secretary of State to immediately withdraw his rejection of the Sample Sheet and to
immediately send written notice to the ACLU approving the Sample Sheet as sufficient as
to form pursuant to section 116.332.4. The Secretary of State is not compelled to re-refer
a copy of the Sample Sheet to the Auditor for purposes of preparing a fiscal note and fiscal
note summary as required by section 116.332.1, as the Auditor has already prepared a fiscal
20
Rule 84.14 allows our court to "give such judgment as the court ought to give" and instructs that "[u]nless
justice otherwise requires, the [appellate] court shall dispose finally of the case." Reliance on Rule 84.14 "is
particularly appropriate for judgments where the salient facts are not in dispute, but the only dispute is the legal
significance of the facts." Malawey v. Malawey, 137 S.W.3d 518, 525 (Mo. App. E.D. 2004) (citation omitted).
"We can render the judgment that the trial court should have rendered when the record and evidence give us
confidence in the reasonableness, fairness, and accuracy of the conclusion reached." LaRocca v. LaRocca, 135
S.W.3d 522, 526 (Mo. App. E.D. 2004).
30
note and fiscal note summary, and has already delivered same to the Attorney General.
The Secretary of State is not compelled to re-refer a copy of the Sample Sheet to the
Attorney General for review as required by section 116.332.1 and section 116.332.3, as
review of the Sample Sheet by the Attorney General for sufficiency as to form would now
be a superfluous and unnecessary act. Immediately following the Secretary of State's
issuance of written notice to the ACLU approving the Sample Sheet as sufficient as to
form, the Secretary of State and the Attorney General are compelled to proceed with
performance of their obligations as contemplated by section 116.334.1.
All other claims for relief in the ACLU's petition are denied.21
It is so ordered.
__________________________________
Cynthia L. Martin, Judge
All concur
21
The ACLU also requested that we compel the Secretary of State to certify an official ballot title by
July 18, 2019, a date the ACLU deems significant to its ability to gather the requisite number of signatures to be able
to timely submit a referendum petition. Section 116.334.1 addresses the secretary of state’s obligation to prepare
and ultimately certify a ballot summary and ballot title. That obligation is expressly conditioned, however, on
approval of a submitted sample sheet pursuant to section 116.332. Section 116.334.1. By our Opinion, and the
judgment herein entered, we have now directed the Secretary of State to approve the Sample Sheet. That will trigger
the Secretary of State's and the Attorney General's obligations to perform the statutory duties outlined in section
116.334.1. Though our judgment generally directs the Secretary of State and the Attorney General to perform their
obligations pursuant to 116.334.1, we have no authority to modify the provisions of that statute, including the times
therein permitted for performance. We therefore deny the ACLU's request to compel the Secretary of State to
certify an official ballot title by July 18, 2019.
We recognize that if the Secretary of State and the Attorney General take all of the time permitted by
section 116.334.1 to perform the obligations therein described, little time may remain for the ACLU to collect
signatures on a referendum petition. That predicament underscores why it is beyond the Secretary of State's
authority under section 116.332 to derail the referendum process by reviewing a sample sheet for anything other
than its sufficiency as to form pursuant to section 116.030.
31