Bergman v. Mills
| Decision Date | 05 March 1999 |
| Docket Number | No. WD,WD |
| Citation | 988 S.W.2d 84 |
| Parties | Roy BERGMAN, Timothy Heuiser, and Jay Nixon, Attorney General of the State of Missouri, Appellants, v. Fred M. MILLS, et al., and Rebecca McDowell Cook, Secretary of State of the State of Missouri, and Claire C. McCaskill, State Auditor of the State of Missouri, Respondents. 56874, WD 56892 and WD 56893. |
| Court | Missouri Court of Appeals |
James A. McAdams, Atty. Gen., Jefferson City, for appellants.
George A. Bartlett, Jefferson City, for Mills, Sr., et al.
Before JAMES M. SMART, Jr., Presiding Judge, JOSEPH M. ELLIS, Judge, and VICTOR C. HOWARD, Judge.
On May 15, 1998, the General Assembly adopted House Bill 1891, a bill directing that a referendum be submitted to the people concerning whether citizens who apply and meet certain requirements should be permitted to carry concealed firearms. The bill provided that the referendum would be put to a vote of the people on April 6, 1999. Section B of House Bill 1891 contained what was described as the official ballot title, which is set out in the Appendix to this opinion, to be used in submitting the measure to the voters. Subsequently, Fred M. Mills, Sister Mary Jean Ryan, FSM, and Chuck L. Keithley, as citizens and voters, brought an action in the circuit court of Cole County, Missouri, to challenge the official ballot title mandated by the legislature in House Bill 1891. The Mills petition alleged that the Secretary of State, State Auditor and Attorney General improperly failed to discharge their ballot title drafting duties as set forth in §§ 116.160, 116.170, and 116.175, 2 and that the official ballot title contained in Section B of House Bill 1891 was without legal effect. On January 12, 1999, the trial court entered a preliminary order in mandamus directing the Secretary of State, State Auditor and State Attorney General to perform their statutory ballot title drafting duties pursuant to Chapter 116, or to show cause why such order should not be entered. On January 21, 1999, Roy Bergman and Timothy Heuiser, also as citizens and voters, filed an Application to Intervene in the Mills action. The Application was orally denied by the court at a hearing held that same day. Also at that hearing, the court rejected the defendants' assertions that the plaintiffs' claims were barred by the doctrine of laches, and found that plaintiffs had standing to proceed in the matter and that mandamus was an appropriate remedy. The court specifically found that the Secretary of State has the responsibility pursuant to § 116.160 to draft the ballot titles for referenda.
On January 25, 1999, the trial court entered its written order in the case finding that the ballot language contained in Section B of House Bill 1891 was without legal effect, and directing the state defendants to perform their official ballot title preparation activities as set forth in Chapter 116. In compliance with the court's order, the state officials completed their title drafting functions as directed by the court and certified the official ballot to the local election authorities. The official ballot title certified by the Secretary of State is also set out in the Appendix to this opinion. From this judgment, the Attorney General appeals, as do the rejected Intervenors, Bergman and Heuiser. For the sake of clarity, this case will hereafter be referred to as "Mills I."
On February 3, 1999, Bergman and Heuiser filed a five count petition in the circuit court of Cole County (hereinafter referred to as "Bergman "). Count I of the petition was a constitutional challenge to Sections 116.160, 116.170 and 116.175; Count II represents a constitutional challenge to the same sections as applied to House Bill 1891; Counts III and IV generally sought a Writ of Mandamus directing the Secretary of State to notify election authorities that the ballot title for House Bill 1891 previously certified had been stricken and not to publish or distribute same, and ordering the Secretary of State to notify election authorities that the official ballot title for House Bill 1891 was as formulated and prescribed in Section B of House Bill 1891; and, finally, Count V challenged the official ballot title of House Bill 1891 as On February 4, 1999, Fred M. Mills, filed a second action in the Cole County circuit court (hereinafter "Mills II "), which was limited to a statutory challenge pursuant to § 116.190 to the official ballot title for House Bill 1891 as certified by the Secretary of State. On February 11, 1999, the trial court conducted an expedited hearing in Bergman and Mills II. At that hearing, the court granted the applications of the Attorney General and Fred M. Mills to intervene in the Bergman case, as well as the State Auditor's motion to consolidate Bergman and Mills II. Finally, after the hearing, the court entered its judgment incorporating the record, pleadings and judgment in Mills I into the consolidated case; finding that the ballot title as prepared by the Secretary of State was neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure and that the language was sufficient and fair and in compliance with § 116.160.2; that the fiscal note summary as prepared by the State Auditor was approved and met the requirements of § 116.175; and ruling against plaintiffs Bergman and Heuiser on their claims and against plaintiff Mills on the claims contained in Mills II.
drafted and certified by the Secretary of State pursuant to § 116.190.
From these judgments, the Attorney General has appealed the trial court's ruling in Mills I, as have Bergman and Heuiser, based on the denial of their application to intervene. Bergman and Heuiser also appeal from the judgment in the consolidated case of Bergman and Mills II. All appeals have been consolidated in this court. On this appeal, Bergman and Heuiser have abandoned their constitutional challenges to Section 116.160, 116.170, and 116.175, as written and as applied in this instance. Thus, we need neither determine whether we have jurisdiction of these challenges or address their merits. 3
Mandamus lies only when there is an unequivocal showing that a public official failed to perform a ministerial duty imposed by law. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App. W.D.1998). To be entitled to relief, there must be a showing that the applicant has a clear, unequivocal, specific and positive right to have performed the act demanded. Id. The court determines whether the right to mandamus is clearly established and presently existing by examining the statute under which the right is claimed. Id. "The principle at the heart of [the writ of mandamus] is that public officers are required to perform ministerial duties without any request or demand, and the entire public has the right to that performance." Missouri Coalition for the Env't. v. Joint Comm. on Admin. Rules, 948 S.W.2d 125, 131 (Mo. banc 1997) (quoting State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992)).
Appellate courts review the grant of a writ of mandamus under an abuse of discretion standard. Missouri Bluffs Golf Joint Venture v. St. Charles County Bd. of Equalization, 943 S.W.2d 752, 754-55 (Mo.App. E.D.1997). Under an abuse of discretion standard, we will reverse the trial court's ruling only when it is " 'so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'
" Whitman's Candies, Inc. v. Pet Inc., 974 S.W.2d 519, 527 (Mo.App. W.D.1998) (). If reasonable people could differ about the propriety of the trial court's ruling, there is no abuse of discretion. Whitman's, 974 S.W.2d at 527-28.
Article III, § 52(a), of the Missouri Constitution of 1945 provides, in pertinent part, that "a referendum may be ordered 1/4 by the General Assembly, as other bills are enacted 1/4." Referendum, therefore, is a constitutionally authorized method for the General Assembly to delegate its legislative authority. Akin v. Dir. of Revenue, 934 S.W.2d 295, 299 (Mo. banc 1996). A referendum is not subject to the veto power of the Governor. Id. Rather, "Article 3, § 52(a), authorizes reference of a bill to a veto or approval by the people and requires that once a bill is referred, it must be submitted to voters at a general election or special election provided for in the bill." Id.
It is conceded by all parties that House Bill 1891 was properly adopted and is to be submitted to the voters on April 6, 1999. And, it is important to understand that the dispute involved in this case is not about Section A of House Bill 1891, the referendum measure itself, but rather about Section B only, which contains the proposed ballot title. The dispositive issue is whether the General Assembly could prescribe the official ballot title to be used for such election, as it purported to do in Section B of House Bill 1891. The answer to this question requires analysis of constitutional and statutory provisions relating to the manner in which referendums are submitted to the voters.
The Missouri constitution, unlike the federal constitution, does not grant legislative power to the General Assembly, but rather is a limitation thereon. Americans United v. Rogers, 538 S.W.2d 711, 716 (Mo. banc 1976). Thus, except for restrictions imposed by the Missouri constitution and statutes...
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