United Labor Committee of Missouri v. Kirkpatrick, 61025

• Decision Date: 24 October 1978
• Docket Number: No. 61025,61025
• Citation: 572 S.W.2d 449
• Parties: UNITED LABOR COMMITTEE OF MISSOURI et al., Appellants, v. James C. KIRKPATRICK, Secretary of State, Respondent, and Freedom to Work Committee, Inc., Intervenor-Defendant-Respondent.
• Court: Missouri Supreme Court

Page 449

572 S.W.2d 449

UNITED LABOR COMMITTEE OF MISSOURI et al., Appellants, v. James C. KIRKPATRICK, Secretary of State, Respondent, and Freedom to Work Committee, Inc., Intervenor-Defendant-Respondent.

No. 61025.

Supreme Court of Missouri, En Banc.

Oct. 24, 1978.

Rehearing Denied Nov. 7, 1978.

James G. Walsh, Jr., Kansas City, Christopher Graham, Jefferson City, for appellants.

John D. Ashcroft, Atty. Gen., Larry Marshall, S. Joel Wilson, Asst. Attys. Gen., Jefferson City, for respondent.

Cullen Coil, Jefferson City, for intervenor-defendant.

SEILER, Judge.

The issue before this court is whether the circuit court properly found that certain initiative petitions from the 4th, 5th and 6th congressional districts were properly counted by the secretary of state and whether the validity of the signatures on those petitions can be shown by means outside of § 126.061, RSMo Supp.1975, form requisites. The initiative measure in question is proposed constitutional amendment No. 23 (Right to Work) on the November 1978 ballot.

The plaintiffs-appellants (who appeal from the judgment of the circuit court denying their prayer for relief enjoining the defendant secretary of state from submitting the proposal at the coming election) are a labor oriented Missouri not-for-profit corporation and several resident officers of various labor organizations. Freedom to Work Committee, Inc., a Missouri not-for-profit corporation, which sponsored and conducted the campaign to obtain the required number of voter signatures, was permitted to intervene as a party defendant.

Although various deficiencies have been alleged by appellants, we deal only with the question which would be outcome-determinative on the continuance of the proposed amendment on the November ballot. That question involves whether the voter signatures on certain petitions can be shown to be valid (and allowed to be treated as such) despite the fact that the circulator's "affidavit" thereon was affixed outside the presence of the notary, with the notary signature being added at a later time and despite evidence that certain circulators, not present when the voters signed the petition, nevertheless signed affidavits swearing that they witnessed the signatures.

Section 126.061 first provides as follows:

"Each sheet of a petition containing signatures shall be verified in substantially the following form by the person who circulated the sheet of the petition, by his affidavit thereon and as part thereof: . . ."

It provides further that the circulator must attest that each of the signers "signed his name thereto in my presence; I believe that each has stated his name . . . correctly, and that each signer is a qualified voter of the state of Missouri . . ." The circulator/affiant then signs the petition, with such signature being "subscribed and sworn to before" a notary public. Section 126.061 then provides: "The form herein given is mandatory, and if followed in any petition it shall be sufficient, disregarding clerical and merely technical errors." ¹

The mandatory nature of the form is apparent on its face. Prior to 1971, § 126.040, RSMo 1969, provided that "The forms herein given are not mandatory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and merely technical errors."

Under Mo.Const. art. III, § 50, proponents of the amendment were required to gather signatures on the petitions from eight percent of the legal voters of two-thirds of the ten congressional districts of the state, and to submit these petitions by July 6, 1978, four months prior to the November 7, 1978 election at which the amendment was to be voted on.

In April, 1978, the Freedom to Work Committee began the initiative petition campaign. Petitions were circulated thereafter until July 6. The proposed amendment reads as follows:

"Section 29(a). That no person shall be deprived of the right and freedom to work at his chosen occupation for any employer because of membership or nonmembership in any labor organization, or because of payment or nonpayment of dues, fees, assessments, or other charges of any kind to any labor organization; and that any contract which contravenes this right is illegal and void."

On July 6, the initiative petitions were filed with the secretary of state for processing pursuant to the provisions of Chapter 126, RSMo Supp.1975.

Between July 6 and August 25, the secretary of state processed these petitions. His certificate issued August 28, 1978, certifying that of a total of 234,305 signatures obtained in the ten congressional districts of the state, 163,000 were valid signatures, which qualified the petitions in eight districts.

Deficiencies in the execution of circulators' affidavits and notarization are alleged in the 4th, 5th and 6th districts. In their petition plaintiffs also allege that the petitions contain forged, fraudulent, fictitious and unauthorized signatures and that some persons signed more than once. We know from the certificates of the secretary of state that he declared some 67,409 signatures to be invalid and of the 163,000 remaining valid signatures, some 50,000 were in the 4th, 5th, and 6th districts. There was little, if any, evidence, and the trial court made no finding, of any forged, fictitious or unauthorized signatures among these remaining signatures. In one of the briefs before us, appellants state "(I)n all candor that we do not believe this to be a forgery case, nor do we have any evidence to suggest that the signatures deemed valid by the Secretary of State, acting through the various election officials around the State, do not appear on their respective list of registered voters."

Two types of irregularities were alleged and found to exist by the trial court. First, Betty Miller and Sue Fellows signed as purported circulators numerous petitions which had been signed by registered voters outside their presence. Most of these petitions were received through the mail. Both women were full time office employees in the Freedom to Work office in Kansas City, and according to depositions of fellow workers did not work outside the office during office hours. Sue Fellows' name appeared on 170 petitions as circulator, with petitions coming from all three districts.

Betty Miller's name appeared on 257 petitions as circulator, also with petitions from all three districts in question. A total of 1,681 signatures in the 4th district, 321 in the 5th district, and 855 in the 6th district were involved in the 427 petitions signed by these two women. However, even if all of the petitions signed by Sue Fellows and Betty Miller were declared invalid, there would still be enough valid signatures in each district to keep the amendment on the ballot.

The second allegation of deficiencies, however, if resulting in invalidation of the petitions, would be sufficient to take the amendment off the November, 1978 ballot. The evidence showed that Stanley I. Dale, III, worked for Freedom to Work Committee in their Kansas City and Jefferson City offices as notary. It is charged that Dale notarized circulators' signatures on some 1,538 petitions at times when the circulators were not in his presence. Plaintiffs' proof on this point consisted of the testimony mostly by deposition of seventy-two petition circulators who in almost every instance testified that they signed the petitions outside Dale's presence, although the petitions when filed bore Dale's signature and notarial seal. These 1,538 petitions contained 12,960 signatures and if ruled invalid would eliminate 3,280 names in the 4th district, 6,171 in the 5th district and 3,509 in the 6th district. If so, the initiative petitions would be short the necessary eight percent of the voters in the required two-thirds of the congressional districts.

The petitions in question were actually before the trial court. ² They bore on them the corroborative markings placed thereon by the local election officials when being checked against the local registration records, upon request by the secretary of state under the authority given him by § 126.081.2, RSMo Supp.1975 to consult the public records, including voter registration records, ³ in determining the validity of the voter signatures upon the petitions. ⁴

The parties stipulated as to the procedures used by the secretary of state and the instructions which he issued to the local election authorities for checking signatures against voter registration. The local authorities were to check the signatures against the signatures on the registration record. They were cautioned to be on the lookout for apparent forgeries, duplicate signatures, printed signatures, husbands and wives signing for each other, or husbands and wives signed on one signature line as "Mr. and Mrs." At the bottom of each page they were to total the number of signatures checked and to indicate the number of registered and nonregistered signatures. The local officials returned the petitions to the secretary of state's office, with their written certificate as to the signatures checked and the number of registered voters eligible to vote. These markings and totals on each page of the petitions can easily be seen on the copies of the petitions which were before the trial court. It was after this checking had been completed that the secretary of state issued his certificate as to the number of valid signatures on the petitions per congressional district. It is abundantly clear therefore, under the record, that there is evidence to support the finding of the trial court that the signatures were genuine. ⁵

The real dispute is over the effect of the improper signing of certain petitions by circulators who, in fact, did not witness the signing of the petitions by the voter, and the improper notarization of various petitions by Mr. Dale (he notarized the signatures of various circulators to their petitions without the affiants being before him). It...