Jeremy Cady and Ryan Johnson v. Missouri Secretary of State John Ashcroft, and Heidi Miller and Laura Dominik

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JEREMY CADY and RYAN JOHNSON, )
)
Appellants, )
v. )
)
) WD83823
MISSOURI SECRETARY OF STATE ) (Consolidated with WD83824)
JOHN ASHCROFT, )
) OPINION FILED:
Respondent, ) June 8, 2020
and )
)
HEIDI MILLER and LAURA DOMINIK, )
)
Intervenor-Respondents. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel R. Green, Judge
Before Special Division: Mark D. Pfeiffer, Presiding Judge, and
Anthony Rex Gabbert and W. Douglas Thomson, Judges
Jeremy Cady (“Cady”) and Ryan Johnson (“Johnson”) challenged Secretary of State John
Ashcroft’s (“Secretary of State”) decision to certify as sufficient an initiative petition proposing a
constitutional amendment, which would be placed on the ballot for the August 4, 2020 primary
election. Cady and Johnson appeal from the judgment of the Circuit Court of Cole County,
Missouri (“circuit court”), which found in favor of the Secretary of State and intervenor
defendants. Finding no error, we affirm.
Factual and Procedural Background
On May 2, 2019, Dr. Heidi Miller (“Dr. Miller”) submitted to the Secretary of State an
initiative petition sample sheet, denominated by the Secretary of State as IP 2020-063, proposing
to create a new section 36 within article IV of the Missouri Constitution, expanding access to
Medicaid for certain Missouri citizens (“Proposed Measure”). The Proposed Measure proposed
the following amendment:
Be it resolved by the people of the State of Missouri that the Constitution be
amended:
Article IV of the Constitution is revised by adding one new section to be known as
Article IV, Section 36(c) to read as follows:
Section 36(c). 1. Notwithstanding any provision of law to the contrary, beginning
July 1, 2021, individuals nineteen years of age or older and under sixty-five years
of age who qualify for MO HealthNet services under 42 U.S.C. Section
1396a(a)(10)(A)(i)(VIII) and as set forth in 42 C.F.R. 435.119, and who have
income at or below one hundred thirty-three percent of the federal poverty level
plus five percent of the applicable family size as determined under 42 U.S.C.
Section 1396a(c)(14) and as set forth in 42 C.F.R. 435.603, shall be eligible for
medical assistance under MO HealthNet and shall receive coverage for the health
benefits service package.
2. For purposes of this section, “health benefits service package” shall mean
benefits covered by the MO HealthNet program as determined by the department
of social services to meet the benchmark or benchmark-equivalent coverage
requirement under 42 U.S.C. Section 1396a(k)(1) and any implementing
regulations.
3. No later than March 1, 2021, the Department of Social Services and the MO
HealthNet Division shall submit all state plan amendments necessary to implement
this section to the United States Department of Health and Human Services, Centers
for Medicare and Medicaid Services.
4. The Department of Social Services and the MO HealthNet Division shall take
all actions necessary to maximize federal financial participation in funding medical
assistance pursuant to this section.
5. No greater or additional burdens or restrictions on eligibility or enrollment
standards, methodologies, or practices shall be imposed on persons eligible for MO
HealthNet services pursuant to this section than on any other population eligible for
medical assistance.
2
6. All references to federal or state statutes, regulations or rules in this section shall
be to the version of those statutes, regulations or rules that existed on January 1,
2019.
On May 23, 2019, the Missouri State Auditor’s Office prepared a Fiscal Note and Fiscal
Note Summary for the Proposed Measure.1 On June 13, 2019, the Secretary of State certified the
official ballot title for the Proposed Measure. The official ballot title provides:
Do you want to amend the Missouri Constitution to:
 adopt Medicaid Expansion for persons 19 to 64 years old with an income level
at or below 133% of the federal poverty level, as set forth in the Affordable
Care Act;
 prohibit placing greater or additional burdens on eligibility or enrollment
standards, methodologies or practices on persons covered under Medicaid
Expansion than on any other population eligible for Medicaid; and
 require state agencies to take all actions necessary to maximize federal financial
participation in funding medical assistance under Medicaid Expansion?
State government entities are estimated to have one-time costs of approximately
$6.4 million and an unknown annual net fiscal impact by 2026 ranging from
increased costs of at least $200 million to savings of $1 billion. Local governments
expect costs to decrease by an unknown amount.
On May 22, 2020, the Secretary of State examined the Proposed Measure and the submitted
signatures for compliance with Chapter 1162 and certified the Proposed Measure.
Missouri’s appropriations of money for expenses relating to Medicaid, among other
programs, for Fiscal Year 2020 are contained in House Bills No. 10 and No. 11. Missouri’s
appropriations for expenses relating to Medicaid, among other programs, for Fiscal Year 2021, are
contained in House Bills No. 2010 and No. 2011, and its supplemental appropriations for the same
categories of expenses for Fiscal Year 2020 are contained in House Bill No. 2014.
1
In preparing the Fiscal Note and Fiscal Note Summary, the Missouri State Auditor consulted a report
commissioned by the Missouri Department of Social Services evaluating Missouri’s Medicaid program. The report
was titled “Rapid Response Review—Assessment of Missouri Medicaid Program” and was dated February 11, 2019.
2
All statutory references are to the REVISED STATUTES OF MISSOURI 2016, as supplemented.
3
On May 26, 2020, Missouri Governor Michael L. Parson issued a proclamation pursuant
to article XII, section 2(b), placing the Proposed Measure on the ballot for the August 4, 2020
primary election. Pursuant to article XII, section 2(b) and section 116.260, the Secretary of State
is required to publish the full text of the Proposed Measure in local newspapers.
On May 22, 2020, a petition for declaratory judgment and injunctive relief was filed in the
circuit court, against the Secretary of State under case number 20AC-CC00210. The plaintiff
named in the petition was Johnson, “a Missouri citizen and taxpayer.” Four days later, on May 26,
2020, a second petition for declaratory and injunctive relief was filed in the circuit court against
the Secretary of State under case number 20AC-CC00209. The plaintiff named in the second
petition was Cady, “a citizen, taxpayer, and registered voter of the state of Missouri.” Both
petitions were filed pursuant to section 116.200.1, which permits any citizen to apply to the Circuit
Court of Cole County to compel the Secretary of State to reverse his decision to certify an initiative
petition as sufficient or insufficient to be included on the ballot. On May 28, 2020, the circuit
court entered a stipulated order consolidating the two cases.
The Petition3 alleged two counts. Count I alleged that the Proposed Measure “is facially
unconstitutional because it appropriates money without creating or providing for any new revenues
in violation of Article III, Section 51 of the Missouri Constitution.” Count II alleged that the
Proposed Measure “fails to set forth the full and correct text of the measure in violation of
§ 116.050, RSMo; Article III, § 50; and Article XII, § 2(b).”
On May 28, 2020, Dr. Miller, the proponent of the Proposed Measure, filed an unopposed
motion to intervene pursuant to Rule 52.12. On May 29, 2020, Laura Dominik, “a Missouri
3
Johnson’s petition in case number 20AC-CC00210 only alleged one count: that the Proposed Measure
violated article III, section 51 of the Missouri Constitution. Cady’s petition in 20AC-CC00209 alleged not only that
the Proposed Measure violated article III, section 51, but that it also violated article III, section 50. We will refer to
Cady’s petition as the “Petition” because, under Rule 66.01, the circuit court’s order of consolidation consolidated the
two civil actions into one civil action.
4
resident and eligible voter [who] signed the Medicaid Expansion initiative petition that is the
subject of this litigation,” filed a motion to intervene pursuant to Rule 52.12(b). Both motions
were granted by the circuit court on May 29, 2020. (Dr. Miller and Ms. Dominik will be referred
to collectively as “Intervenors.”)
On May 29, 2020, the Secretary of State filed his answer to the Petition and requested that
judgment be entered in the State’s favor. On the same day, Intervenor Dominik filed her answer
to the Petition, and asserted as affirmative defenses that Count I failed to state a claim upon which
relief can be granted and was not ripe for review because the Proposed Measure had not yet been
adopted by vote of the citizenry, the election in question had not yet occurred, and it was not
possible to determine whether any appropriation would be required until after the measure is
adopted; and that Count II failed to state a claim upon which relief can be granted.
On May 31, 2020, Cady and Johnson filed a joint pre-trial brief, renewing their arguments
that the Proposed Measure facially mandated spending without new revenues in violation of
article III, section 51 and, alternatively, that the Proposed Measure violated the “full text”
requirement of article III, section 50 because it did not expressly identify all provisions of the
Missouri Constitution to be amended.
On June 1, 2020, the parties submitted a joint stipulation of facts and exhibits to the circuit
court, and the circuit court heard arguments. The circuit court entered its judgment on June 2,
2020 (“Judgment”), based on the stipulated facts and exhibits, arguments presented, and applicable
law. The Judgment found in favor of the Secretary of State and the Intervenors and against Cady
and Johnson on all counts of the Petition. The Judgment concluded that Cady and Johnson’s
pre-election challenges under article III, section 51 were not ripe; the Proposed Measure did not
on its face or by necessary implication require the appropriation of existing funds and did not
5
violate article III, section 51; and the Proposed Measure satisfied the requirements of article III,
section 50 and section 116.050.2.
Cady filed an immediate appeal on June 2, 2020, and Johnson did so on June 3, 2020. This
court ordered the cases consolidated. Our appellate proceedings were expedited to require
submission of a record on appeal by June 3, 2020; the completion of briefing by June 6, 2020; and
oral argument on June 8, 2020.
Standard of Review
Because the case was submitted on stipulated facts entered into between the parties in the
proceedings before the circuit court, “[t]he only question before us is whether the trial court made
the proper legal conclusion from the stipulated facts.” Mo. Elec. Coops. v. Kander, 497 S.W.3d
905, 910 (Mo. App. W.D. 2016) (internal quotation marks omitted). Thus, our review is de novo.
Mo. Mun. League v. Carnahan, 303 S.W.3d 573, 580 (Mo. App. W.D. 2010). “‘This Court is
primarily concerned with the correctness of the result, not the route taken by the trial court to reach
it; the trial court’s judgment will be affirmed if it is correct on any ground supported by the record,
regardless of whether the trial court relied on that ground.’” Mo. Elec. Coops., 497 S.W.3d at 910
(quoting Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003)).
Our review of challenges to the initiative process is guided by certain fundamental
principles:
The people, from whom all constitutional authority is derived, have reserved the
“power to propose and enact or reject laws and amendments to the Constitution.”
Mo. Const. art. III, [sec.] 49. When courts are called upon to intervene in the
initiative process, they 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. Constitutional and statutory provisions relative to initiative are
liberally construed to make effective the people’s reservation of that power. . . .
6
The people, speaking with equal vigor through the same constitution, have placed
limitations on the initiative power. That those limitations are mandatory is clear
and explicit.
This constitution may be revised and amended only as therein provided.
Comm. for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503, 507 (Mo. banc 2006) (quoting
Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990)).
“[T]his Court must attempt to harmonize all provisions of the initiative’s proposal with the
constitution . . . rather than creat[e] an irreconcilable conflict.” Id. at 510 (citing Consol. Sch. Dist.
No. 1 of Jackson Cty. v. Jackson Cty., 936 S.W.2d 102, 103-04 (Mo. banc 1996)).
Analysis
Cady and Johnson assert three points on appeal, arguing that the circuit court erred: (1) in
entering judgment against them by declaring that their pre-election challenge to the Proposed
Measure, asserting that it violated article III, section 51 of the Missouri Constitution by
appropriating money and failing to cover that appropriation with any new revenues, was not ripe
for judicial determination; (2) in holding that the Proposed Measure did not facially violate
article III, section 51 of the Missouri Constitution; and (3) in concluding that the Proposed
Measure contained the “full text of the measure” in compliance with article III, section 50 of the
Missouri Constitution. We agree with the circuit court that the substantive challenge to the
Proposed Measure (Point I) is not ripe for judicial determination and that the two challenges to the
form of the Proposed Measure (Points II and III) are without merit.
Point I – Ripeness of Pre-election Challenge
In Point I, Cady and Johnson contend that the circuit court erred in entering judgment
against them by declaring that their pre-election challenge to the Proposed Measure, asserting that
it violated article III, section 51 of the Missouri Constitution by appropriating money and failing
to cover that appropriation with any new revenues, was not ripe for judicial determination.
7
Pre-election review of the constitutionality of an initiative petition is limited. As explained
in Brown v. Carnahan, 370 S.W.3d 637 (Mo. banc 2012):
Nothing in our constitution so closely models participatory democracy in its pure
form [as the citizen initiative petition process]. Through the initiative process,
those who have no access to or influence with elected representatives may take their
cause directly to the people. The people, from whom all constitutional authority is
derived, have reserved the “power to propose and enact or reject laws and
amendments to the Constitution.”
Id. at 645 (quoting Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827
(Mo. banc 1990) (quoting MO. CONST., art. III, § 49)). “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.” Id. “[W]hen courts are called upon to intervene in the initiative process, they 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. (internal quotation marks omitted).
“Even where a challenge purports to involve a constitutional provision pertaining to the
required procedure or form of an initiative petition, the challenge will not be heard pre-election
unless” two criteria are satisfied: “[A] pre-election challenge must . . . involve a ‘threshold issue[ ]
that affect[s] the integrity of the election itself, and [be] so clear as to constitute a matter of form.’”
Mo. Elec. Coops., 497 S.W.3d at 915 (quoting Brown, 370 S.W.3d at 645). “We may [only] look
beyond the face of [an initiative] petition to the extent necessary to determine whether
constitutional and statutory requirements pertaining to the form of the petition have been
satisfied.” Id. at 912-13 (internal quotation marks omitted). Such challenges pertain primarily to
the current constitutional status of an initiative petition, as they address compliance with express
conditions precedent to placing a proposal on the ballot. Id. at 915. “Pre-election judicial review
8
of a constitutional challenge pertaining to the required ‘form’ of an initiative petition is thus
appropriate because regardless of the meritorious substance of a proposition, if the prerequisites
of [the Missouri Constitution pertaining to the procedure and form of an initiative petition] are not
met, the proposal is not to be on the ballot.” Id. at 913 (internal quotation marks omitted).
In City of Kansas City v. Kansas City Board of Election Commissioners, 505 S.W.3d 795
(Mo. banc 2017), the Missouri Supreme Court explained that the Court has “adopted a bright-line
test prohibiting pre[-]election challenges to what a ballot proposal would do, if approved by the
voters. Instead, after Boeving, pre[-]election challenges are limited to claims that the procedures
for submitting a proposal to the voters were not followed.” Id. at 798 (citing Boeving v. Kander,
496 S.W.3d 498, 511 (Mo. banc 2016)). “[T]he salient point in this pre-election contest is that
there is nothing on the face of [the Proposed Measure] that clearly and unavoidably purports to
appropriate previously existing funds . . . .” Boeving, 496 S.W.3d at 510-11. There are no words
on the face of the Proposed Measure that appropriate existing funds, and the circuit court properly
rejected Cady’s and Johnson’s invitation to “delve into the hypothetical interaction between the
[Proposed Measure] (if passed), Missouri appropriations law, and substantive Medicaid law” and
adjudicate their article III, section 51 challenges on the merits. The circuit court correctly
concluded that Boeving and Kansas City Board of Election Commissioners make clear that such
review is appropriate only after the election, should the Proposed Measure pass.
Point I is denied.
Point II – Article III, Section 51 Challenge
In Point II, Cady and Johnson contend that the circuit court erred in holding that the
Proposed Measure did not facially violate the prohibition against appropriation by initiative found
in article III, section 51 of the Missouri Constitution:
9
III Section 51. Appropriations by initiative—effective date of initiated laws—
conflicting laws concurrently adopted.—The initiative shall not be used for the
appropriation of money other than of new revenues created and provided for
thereby, or for any other purpose prohibited by this constitution. Except as
provided in this constitution, any measure proposed shall take effect when approved
by a majority of the votes cast thereon. When conflicting measures are approved
at the same election the one receiving the largest affirmative vote shall prevail.
(Emphasis added to text.) Cady and Johnson argue that the Proposed Measure forces the state to
spend money and forces the General Assembly to annually appropriate the state funds required
under federal Medicaid statutes and regulations without creating or providing any new revenue
source; and therefore, those funds are unconstitutionally appropriated by the measure itself.
One challenge eligible for pre-election judicial review is a constitutional challenge
pertaining to the provision in article III, section 51 of the Missouri Constitution prohibiting
initiative petitions from being used for the “appropriation of money other than of new revenues
created and provided for thereby.” Mo. Elec. Coops., 497 S.W.3d at 914. “[A] challenge alleging
a violation of this provision of the Missouri Constitution involves the constitutionally required
procedure or form on an initiative petition and can be readily gauged, often from the language of
the initiative itself, as to be an obvious matter of form.” Id.
In City of Kansas City v. Chastain, 420 S.W.3d 550 (Mo. banc 2014), our Supreme Court
held that the trial court had been authorized “to conduct pre-election review of the facial
constitutionality of an initiative petition” because the issue was whether the proposed ordinance
was plainly “an unconstitutional appropriation ordinance under [a]rticle III, section 51 of the
Missouri Constitution.” Id. at 554-55 (citing Missourians to Protect the Initiative Process, 799
S.W.2d at 828). The Supreme Court is consistent in limiting pre-election judicial review of
challenges to initiative petitions to whether there are obvious violations of express constitutional
or statutory “conditions precedent to placing a proposal on the ballot.” Missourians to Protect the
Initiative Process, 799 S.W.2d at 828.
10
As in this case, the opponents in Boeving argued that the amendment violated the provision
in article III, section 51. 496 S.W.3d at 509. The Boeving court found:
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.
496 S.W.3d at 509-10. Even though the Court has entertained “appropriation by initiative” claims
in pre-election litigation,4 it is bound to adopt an “‘interpretation [that] harmonizes the provisions
of . . . the initiative and article III, section 51 of the state constitution rather than creating an
irreconcilable conflict.’” Id. at 510 (quoting Comm. for a Healthy Future, Inc., 201 S.W.3d at 510
(rejecting claim)).
According to the official ballot title, state government entities are estimated to have
one-time costs of approximately $6.4 million and an unknown annual net fiscal impact by 2026
ranging from increased costs of at least $200 million to savings of $1 billion. In addition, local
governments expect costs to decrease by an unknown amount. “[T]he salient point in this
pre-election contest is that there is nothing on the face of the [Proposed Measure] that clearly and
unavoidably purports to appropriate previously existing funds . . . .” Boeving, 496 S.W.3d at
4
In Boeving v. Kander, 496 S.W.3d 498, 510 n.6 (Mo. banc 2016), the Court explained:
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, 364 Mo. 896,
269 S.W.2d 662, 665 (1954) (“proposed ordinance is, in effect, an appropriation ordinance but does
not create nor provide for any revenues”); State 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 Committee for a Healthy Future, Inc. v.
Carnahan, 201 S.W.3d 503, 510 (Mo. banc 2006).
11
510-11. As the circuit court observed, the Proposed Measure does not use the phrase “stand
appropriated” or any similar phrase that indicates an appropriation of existing funds or directs the
legislature to appropriate such funds. The forecasts as to costs of the Proposed Measure go to what
the Proposed Measure will or may do if approved by the voters and put into operation, not to
whether the Proposed Measure is properly put before the voters. Funding for the Missouri
Medicaid program, MO HealthNet, is appropriated annually by the General Assembly. The
Proposed Measure does not direct or restrict the General Assembly’s ability to change the amount
of appropriations for the MO HealthNet program or to increase or decrease funding for the program
based on health-care-related costs. This interpretation harmonizes the provisions of the Proposed
Measure and article III, section 51 of the state Constitution rather than creating an “irreconcilable
conflict.” Comm. for a Healthy Future, Inc., 201 S.W.3d at 510.
Point II is denied.
Point III – Article III, Section 50 Challenge
In Point III, Cady and Johnson contend that the circuit court erred in concluding that the
Proposed Measure contained the “full text of the measure” in compliance with article III,
section 50 of the Missouri Constitution:
III Section 50. Initiative petitions—signatures required—form and
procedure.—Initiative petitions proposing amendments to the constitution shall be
signed by eight percent of the legal voters in each of two-thirds of the congressional
districts in the state, and petitions proposing laws shall be signed by five percent of
such voters. Every such petition shall be filed with the secretary of state not less
than six months before the election and shall contain an enacting clause and the
full text of the measure. 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, and the enacting clause thereof shall be “Be it resolved by the people of
the state of Missouri that the Constitution be amended:”. Petitions for laws shall
contain not more than one subject which shall be expressed clearly in the title, and
the enacting clause thereof shall be “Be it enacted by the people of the state of
Missouri:”.
12
(Emphasis added to text.) Cady and Johnson argue that the initiative petition fails to include the
full text of the measure in that it fails to list existing constitutional provisions in direct conflict
with the Proposed Measure, including article III, section 36 (payment of state revenues and receipts
to treasury—limitation of withdrawals to appropriations—order of appropriations) and article IV,
sections 24 (governor’s budget and recommendations as to revenue—proposed legislation not
enacted not to be included in projection of new revenues), 25 (limitation of governor’s budget on
power of appropriations), 26 (governor’s power of partial veto of appropriation bills—procedure—
limitations), and 27 (power of governor to control rate of and reduce expenditures—notification
to general assembly, when).
Another challenge eligible for pre-election judicial review is where an initiative petition,
as in this case, “is claimed to violate article III, section 50 of the Missouri Constitution because
it . . . amends more than one constitutional provision.” Mo. Elec. Coops., 497 S.W.3d at 914. See
also Moore v. Brown, 165 S.W.2d 657, 659-60 (Mo. banc 1942) (entertaining pre-election
challenge to constitutionality of initiative petition involving claim that measure contained more
than one subject and amended constitutional provisions beyond those it purported to amend).
“Such challenges address a constitutional provision pertaining to the required procedure and form
of an initiative petition, and by their nature allege a violation that can be readily gauged, rendering
it so obvious as to be a matter of form.” Mo. Elec. Coops., 497 S.W.3d at 914.
As in this case, in Boeving, opponents to a constitutional amendment raised an article III,
section 50 challenge and argued that the amendment “amends by implication” other provisions of
the constitution. 496 S.W.3d at 508. The court explained:
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
13
operation. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 15 (Mo. banc 1981) (“Moore
does not require the makers of an 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, 350 Mo. 256, 165 S.W.2d 657, 663 (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.
Id. at 509.
In Ritter v. Ashcroft, 561 S.W.3d 74, 95 (Mo. App. W.D. 2018), appellants argued that the
circuit court erred in rejecting their argument that the initiative petition was defective because it
failed to identify existing constitutional provisions with which the initiative petition was in “direct
conflict.” The opponents relied on the relevant text of article III, section 50, which provides that
“[e]very [initiative] petition . . . shall contain . . . the full text of the measure.” They also relied on
section 116.050.2(2), which provides in relevant part that “[t]he full and correct text of all initiative
and referendum petition measures shall . . . [i]nclude all sections of existing law or of the
constitution which would be repealed by the measure.” The court explained:
In order for provisions proposed in an initiative petition to be in “direct conflict”
with existing law, it is not enough that the provisions of existing law “will be
changed or affected by the amendment.” Buchanan v. Kirkpatrick, 615 S.W.2d 6,
15 (Mo. banc 1981). Instead, the provisions of the petition must be “in direct
conflict with or . . . irreconcilably repugnant” to existing law. Id.
Ritter, 561 S.W.3d at 95. The court found that section 116.050 “does not require initiative
proponents to include all those provisions ‘affected,’ ‘impacted,’ or ‘modified’ by a proposed
measure. Moreover, requiring proponents to ‘ferret out’ all such potential conflicts in the abstract
would tend to stifle the initiative process.” Id. (quoting Knight v. Carnahan, 282 S.W.3d 9, 19
(Mo. App. W.D. 2009)).
14
Like the Boeving court, we are not “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.” 496 S.W.3d at 509. The
circuit court did not err in observing that Cady’s claim that the Proposed Measure amends
article III, section 36 and article IV, sections 24-28 “requires an overly broad reading on the
[Proposed Measure] to get to that result.” The circuit court properly concluded that the Proposed
Measure neither purported to appropriate existing funds nor implicated the Governor’s role in the
appropriation process. The circuit court also properly treated the Proposed Measure as an
amendment to MO HealthNet’s eligibility criteria, subject to the legislature’s appropriation power.
Point III is denied.
Conclusion
The circuit court’s judgment is affirmed.
/s/Mark D. Pfeiffer
Mark D. Pfeiffer, Presiding Judge
Anthony Rex Gabbert and W. Douglas Thomson, Judges, concur.
15