Laura Reeves v. Jason Kander and John Watson and Returning Government to the People and Todd S. Jones

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
LAURA REEVES, )
)
Respondent, )
)
v. )
)
)
WD78559
JASON KANDER and JOHN WATSON, )
)
OPINION FILED:
Respondents, )
June 9, 2015
)
and )
)
RETURNING GOVERNMENT TO THE )
PEOPLE and TODD S. JONES, )
)
Appellants. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Special Division: Karen King Mitchell, Presiding Judge, and
Gary D. Witt and Anthony Rex Gabbert, Judges
Intervenors, Todd S. Jones and Returning Government to the People (collectively
“Jones”), appeal the judgment of the Circuit Court of Cole County, which held that Initiative
Petition 2016-007 (“the Initiative”) violated the Missouri Constitution and ordered that it not
appear on the ballot. Because the claims were not ripe for review by the trial court, we reverse.
Facts
On December 2, 2014, Jones presented the Initiative, which contains proposed
amendments to Article VIII of the Missouri Constitution related to campaign finance reform, to
the Secretary of State. The Secretary certified the following ballot title:
Shall the Missouri Constitution be amended to:
establish limits on campaign contributions by individuals or entities to
political parties, political committees, or committees to elect candidates
for state or judicial office;
prohibit individuals and entities from intentionally concealing the source
of such contributions;
require corporations or labor organizations to meet certain requirements in
order to make such contributions; and
provide a complaint process and penalties for any violations of this
amendment?
It is estimated this proposal will increase state government costs by at least
$118,000 annually and have an unknown change in costs for local governmental
entities. Any potential impact to revenues for state and local governmental
entities is unknown.
Jones has not begun collecting signatures to place the Petition on the ballot, and the Secretary
has therefore not “certifie[d the Initiative] as sufficient or insufficient” for inclusion on the
ballot. Plaintiff Laura Reeves, an opponent of the Initiative, filed a petition challenging the
ballot title for the Initiative, pursuant to section 116.190, and asserting constitutional claims
against the Initiative itself.
The trial court denied Reeves’s challenges to the ballot title, but held that
paragraph 23.3(12) of the Initiative violated the First Amendment to the United States
Constitution, and that the Initiative impermissibly amended multiple articles of the Missouri
Constitution in violation of Article III, section 50. The court then held that no provision may be
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severed from an initiative petition in a pre-election challenge, and that the Initiative was
therefore invalid in its entirety. Jones timely appealed.1
Standard of Review
The parties stipulated to the facts relevant to the issues being addressed on appeal.
“Therefore, ‘[t]he only question before us is whether the trial court made the proper legal
conclusions from the stipulated facts.’” Kuehner v. Kander, 442 S.W.3d 224, 228 (Mo. App.
W.D. 2014) (quoting Knight v. Carnahan, 282 S.W.3d 9, 15 (Mo. App. W.D. 2009)).
Our review is further shaped by the fact “‘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 unconstitutional if
passed and adopted by the voters.’” Id. (quoting Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12
(Mo. banc 1981)). “Moreover, when a court is ‘called upon to intervene in the initiative process,
[it] must act with restraint, trepidation[,] and a healthy suspicion of the partisan who would use
the judiciary to prevent the initiative process from taking its course.’” Id. (quoting Brown v.
Carnahan, 370 S.W.3d 637, 645 (Mo. banc 2012)). “Nothing in our constitution so closely
models participatory democracy in its pure form. Through the initiative process, those who have
no access to or influence with elected representatives may take their cause directly to the
people.” Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc
1990).
1
We have jurisdiction despite the allegations of unconstitutionality asserted in this case. Article V,
section 3, of the Missouri Constitution vests “exclusive appellate jurisdiction in all cases involving the validity . . .
of a statute or provision of the constitution of this state,” with the Supreme Court. Because this case presents only a
challenge to the constitutionality of a proposed constitutional amendment, jurisdiction lies with this court.
Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 826, 826 n.1 (Mo. banc 1990).
3
Analysis
On appeal, Jones argues that the circuit court erred in declaring the Initiative
unconstitutional because: (1) the challenge to the Initiative on the grounds that it violates the
First Amendment is not ripe in that, to be ripe before the election, an alleged constitutional
violation must be so obvious as to constitute a matter of form, which this alleged violation is not;
(2) the First Amendment challenge pursued by Reeves affects only a narrow group of entities as
a result of a single sub-paragraph of the Initiative, and the Initiative contains a severability
clause, thus the circuit court should not have held that the Initiative as a whole was facially
unconstitutional; and (3) the Initiative amends only Article VIII of the Missouri Constitution, and
any incidental effects on other articles of the Constitution are insufficient to hold that the
Initiative amends multiple articles of the Constitution in violation of Article III, section 50.
Before reaching Jones’s substantive arguments, we first consider whether they are ripe
for review before the Initiative has been certified for the ballot by the Secretary. “Ripeness is a
‘tool’ of the court, which is used to determine whether a controversy is ‘ripe’ or ready for
judicial review, or whether by conducting the review, we would simply be rendering an advisory
opinion on some future set of circumstances, which we are not permitted to do.” Local 781 Int’l
Ass’n of Fire Fighters, AFL–CIO v. City of Independence, 947 S.W.2d 456, 461 (Mo. App. W.D.
1997). A review for ripeness is therefore appropriate even where, as here, “[n]either party has
raised the [specific] issue of ripeness” upon which we rely, on appeal. Mo. Retired Teachers
Found. v. Estes, 323 S.W.3d 100, 104 n.8 (Mo. App. W.D. 2010).
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I. Reeves’s Multiple Article Claim is not Ripe.
Our Supreme Court has already determined that a claim that an initiative petition contains
multiple subjects, in violation of Article III, section 50, is not ripe before the Secretary
determines whether to certify the initiative for inclusion on the ballot.
Reeves brought this challenge under section 116.190, which authorizes a court “to do no
more than certify a correct ballot title.” Missourians to Protect the Initiative Process, 799
S.W.2d at 829. Section 116.190.1 requires an action challenging the fairness and sufficiency of a
ballot title to be brought within ten days of the certification of the official ballot title by the
Secretary; thus, before an initiative is circulated for signatures. Presumably, this challenge is
allowed to proceed early in the process because the title, as certified by the Secretary, is used
during circulation. § 116.180 (“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.”). But “[s]ection 116.190 does
not authorize a review as to whether the constitutional prerequisites [of Article III, section 50]
have been met.” Missourians to Protect the Initiative Process, 799 S.W.2d at 829. Rather, the
remedy for a multiple article challenge “is found under § 116.200.” Id. “Any controversy as to
whether the prerequisites of [A]rticle III, [section] 50 have been met is ripe for judicial
determination when the Secretary of State makes a decision to submit, or refuse to submit, an
initiative issue to the voters,” id. at 828, which he has not yet done in this case. Although it is
doubtful that either the passage of time or the gathering of signatures will change the relative
merits of Reeves’s claim, courts simply may not review a claim that is not ripe. Accordingly, the
trial court erred in reviewing Reeves’s claim that the Initiative amends multiple articles of the
Missouri Constitution.
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II. Reeves’s Claim that the Initiative is Facially Unconstitutional is not Ripe.
Similarly, we conclude that Reeves’s challenge to the facial constitutionality of the
Initiative on First Amendment grounds is not ripe.
There can no longer be any doubt that “Missouri law authorizes courts to conduct
pre-election review of the facial constitutionality of an initiative petition.” City of Kansas City v.
Chastain, 420 S.W.3d 550, 554 (Mo. banc 2014). While courts will generally not “give advisory
opinions as to whether a particular proposal would, if adopted, violate some superseding
fundamental law, such as the United States Constitution,” Missourians to Protect the Initiative
Process, 799 S.W.2d at 827, “precedent does grant us some discretion to review allegations that
an initiative is facially unconstitutional.” Knight, 282 S.W.3d at 21. “This exception [to the
prohibition against pre-election review] comes into play where the constitutional violation in a
proposed measure is so obvious as to constitute a matter of form.” Id.; United Gamefowl
Breeders Ass’n of Missouri v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000) (prior to the election,
the judiciary will only review “those threshold issues that affect the integrity of the election
itself, and that are so clear as to constitute a matter of form.”).
Pre-election review for facial unconstitutionality has been referred to as an “exception[]
to the general rule” that pre-election disputes are not ripe. State ex rel. Hazelwood Yellow
Ribbon Comm. v. Klos, 35 S.W.3d 457, 468 (Mo. App. E.D. 2000). And Missouri courts have
reviewed these challenges on a number of occasions—following a final determination by the
election authority as to whether to certify the initiative for the ballot. See id. at 463, 468
(upholding election authority’s decision not to place a facially unconstitutional initiative petition
on the ballot); Knight, 282 S.W.3d at 14, 22 (dismissing as “debatable” claims that an initiative
petition was facially unconstitutional after proponents had gathered sufficient signatures and
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Secretary of State had certified it to appear on the ballot); Chastain, 420 S.W.3d at 554
(reviewing initiative petition for facial unconstitutionality after city refused to place it on the
ballot). But we are unaware of any decision in which such review has occurred where, as here,
sufficient signatures have not been collected and the Secretary has not decided whether to place
the Initiative on the ballot.
As noted above, this action was brought under section 116.190, within ten days of the
certification of the ballot title and before circulation. As with Reeves’s multiple article
challenge, “section 116.190 does not provide the relief [Reeves] now seeks,” i.e., a finding that
the Initiative is unconstitutional and should be removed from the ballot. Cole v. Carnahan, 272
S.W.3d 392, 394 (Mo. App. W.D. 2008). “‘Section 116.190 allows the trial court to correct any
insufficient or unfair language of the ballot title and to certify the corrected official ballot title to
the secretary of state’ [or] . . . to remand the fiscal note or the fiscal note summary to the Auditor
for preparation of a new fiscal note or fiscal note summary.”2 Id. at 394-95 (quoting Overfelt v.
McCaskill, 81 S.W.3d 732, 736 (Mo. App. W.D. 2002)). “These are the exclusive remedies
allowed under the statute.” Id. at 395. “‘In carving out [these remedies], the legislature
apparently weighed the interests of the citizenry in getting ballot initiatives on the ballot in a
timely fashion against the interests of those opposing the language to be utilized on the official
ballot title.’” Id. (quoting Overfelt, 81 S.W.3d at 736 n.3).
It makes perfect sense that the election statutes should provide for immediate review of
the adequacy of the ballot title, which will be attached to the Initiative when signatures are
gathered and presumably used by citizens to determine whether they will sign the petition.
§ 116.180. But a decision as to the ultimate validity of the Initiative carries no such immediate
2
Reeves has not appealed the trial court’s determination that the ballot title and fiscal note are fair and
sufficient.
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concern. At this stage, an opinion as to the substantive constitutionality of the Initiative would
be advisory, especially given the small chance that a given petition will actually reach the
voters.3 While both parties agree that it would be helpful to know whether the initiative is
constitutional before the proponents undertake the significant effort and expense necessary to get
the required signatures, “[n]o provisions exist in section 116.190 for removal of the initiative
from the ballot or for a prospective, hypothetical declaration of the act null and void (if
ultimately passed by the voters),” Cole, 272 S.W.3d at 395, and to grant such relief at this
juncture would be contrary to the general prohibition on advisory opinions. Pinkowski v.
Washington Univ., 451 S.W.3d 354, 358 (Mo. App. E.D. 2014) (“It is well-settled that appellate
courts do not render advisory opinions or determine speculative issues for the benefit of other
cases arising in the future . . . .” (internal citations omitted)); State ex inf. Danforth v. Cason, 507
S.W.2d 405, 418 (Mo. banc 1973) (“[W]e do not render advisory opinions[.]”); State ex rel. Mo.
Pub. Serv. Co. v. Elliott, 434 S.W.2d 532, 536 (Mo. banc 1968) (“[T]he Court does not render
advisory opinions.”); Harris v. Consolid. Sch. Dist. No. 8 C, Dunklin Cnty., 328 S.W.2d 646, 654
(Mo. banc 1959) (“An advisory decree upon hypothetical facts is improper.”).
The remedy that Reeves seeks is not available until “the Secretary of State makes a
decision to submit, or refuse to submit, an initiative issue to the voters.” Missourians to Protect
the Initiative Process, 799 S.W.2d at 828. “At that point, a judicial opinion as to whether the
constitutional requirements have been met is no longer hypothetical or advisory.” Id. This court
3
Of the dozens of petitions that were received by the Secretary in the 2014 election cycle, only one
initiative petition actually appeared on a ballot. http://www.sos.mo.gov/elections/2014ballot/ (viewed May 28,
2015).
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cannot, therefore, review Reeves’s claims of facial unconstitutionality.4 Cole, 272 S.W.3d at
395. The trial court erred in issuing a decision on a claim that was not ripe for review.
Conclusion
Because neither the claim that the Initiative facially violates the First Amendment nor the
claim that the Initiative amends multiple articles of the Missouri Constitution is ripe for review,
the judgment of the trial court invalidating the Initiative is reversed. The ballot title is certified
to the Secretary of State.
Karen King Mitchell, Presiding Judge
Gary D. Witt and Anthony Rex Gabbert, Judges, concur.
4
Reeves states that she brought her challenge to the facial constitutionality of the Initiative as part of her
section 116.190 action because constitutional claims must be raised at the earliest possible opportunity or they are
waived. An opponent to an initiative petition is not required to raise a substantive constitutional challenge as part of
a section 116.190 challenge in order to avoid waiver. Section 116.190 provides for a limited cause of action before
circulation of the Initiative. Only those challenges specifically provided for by the statute are allowed at that time.
The existence of a section 116.190 challenge does not eliminate the need for ripeness prior to the initiation of a
substantive constitutional challenge.
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