Am. Civil Liberties Union of Mo. v. Ashcroft

• Decision Date: 08 July 2019
• Docket Number: WD 82880
• Citation: 577 S.W.3d 881
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MISSOURI and Sara E. Baker, Appellants, v. John R. ASHCROFT, et al., Respondents.
• Court: Missouri Court of Appeals

577 S.W.3d 881

AMERICAN CIVIL LIBERTIES UNION OF MISSOURI and Sara E. Baker, Appellants,

v.John R. ASHCROFT, et al., Respondents.

WD 82880

Missouri Court of Appeals, Western District.

OPINION FILED: July 8, 2019

Anthony E. Rothert and Jessie Steffan, St. Louis, MO and Gillian R. Wilcox, Kansas City, MO, for appellants.

D. John Sauer, St. Louis, MO, for respondents.

Before Special Division: Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

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repeals seven statutes (sections 135.630, 188.010, 188.015, 188.027, 188.028, 188.043, and 188.052) and replaces the repealed statutes with seventeen new provisions.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.

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 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 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 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 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...