Billington v. Carnahan

• Decision Date: 17 September 2012
• Docket Number: No. WD 75602.,WD 75602.
• Citation: 380 S.W.3d 586
• Parties: Hardy BILLINGTON, et al., Appellants, v. Robin CARNAHAN, Respondent.
• Court: Missouri Court of Appeals

380 S.W.3d 586

Hardy BILLINGTON, et al., Appellants,

v.Robin CARNAHAN, Respondent.

No. WD 75602.

Missouri Court of Appeals, Western District.

Sept. 17, 2012.

Clayton J. Callen, for Appellants.

James R. Layton, Jefferson City, for Respondent.

Before Special Division: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and KAREN KING MITCHELL, Judge.

JOSEPH M. ELLIS, Judge.

Hardy Billington, Ron Calzone, Bev Ehlen, William Clark Hardin IV, James MN. Harris, Scott Magill, and Ray Rowland (“Appellants”) are Missouri citizens who brought an action in the Circuit Court of Cole County challenging Secretary of State Robin Carnahan's official summary statement of a proposed amendment to the constitutional provisions governing the process by which appellate judges are selected in Missouri. This proposed amendment is to be placed on the ballot for the November 2012 general election. The circuit court, after hearing argument, entered a judgment on the pleadings in favor of the Secretary of State (“Secretary”).¹ This appeal followed. We affirm.

On May 10, 2012, the Missouri general assembly approved Senate Joint Resolution No. 51 (“SJR 51”), now officially designated “Constitutional Amendment 3,” resolving to submit to the voters a referendum repealing sections 25(a) and 25(d) of article V of the Missouri Constitution and replacing them with new language, as reflected below with the new language in bold and deleted language in [brackets]:

Section 25(a). Whenever a vacancy shall occur in the office of [judge of any of the following courts of this state, to wit: The supreme court, the court of appeals, or in the office of] circuit or associate circuit judge within the city of St. Louis [and], Jackson County or any other circuit electing under section 25(b) to have their circuit and associate circuit judges appointed, the governor shall fill such vacancy by appointing one of three persons possessing the qualifications for such office, who shall be nominated and whose names shall be submitted to the governor by a nonpartisan judicial commission established and organized as hereinafter provided. Whenever a vacancy shall occur in the office of judge of the supreme court or the court of appeals, the governor shall fill such vacancy by appointing one of four persons possessing the qualifications for such office, who shall be nominated and whose names shall be submitted to the governor by a nonpartisan judicial commission established and organized as hereinafter provided. If the governor fails to appoint any of the nominees within sixty days after the list of nominees is submitted, the nonpartisan judicial commission making the nomination shall appoint one of the nominees to fill the vacancy.

Section 25(d). Nonpartisan judicial commissions whose duty it shall be to nominate and submit to the governor names of persons for appointment as provided by sections 25(a)-(g) are hereby established and shall be organized on the following basis: For vacancies in the office of judge of the supreme court or of the court of appeals, there shall be one such commission, to be known as “The Appellate Judicial Commission”; for vacancies in the office of circuit judge or associate circuit judge of any circuit court subject to the provisions of sections 25(a)-(g) there shall be one such commission, to be known as “The ...... Circuit Judicial Commission”, for each judicial circuit which shall be subject to the provisions of sections 25(a)-(g)[;]. The appellate judicial commission shall consist of [a judge of the supreme court selected by the members of the supreme court, and the remaining members shall be chosen in the following manner:

]

seven voting members and one nonvoting member. The members of the supreme court shall select a former judge, who has not lost a retention election or been removed for cause, of the court of appeals or the supreme court to serve as the nonvoting member of the commission. Nonvoting members shall be selected for terms of four years, with the first term beginning January 15, 2013.

The members of the bar of this state residing in each court of appeals district shall elect one of their number to serve as a voting member of said commission[, and]. The governor shall appoint [one citizen, not a member of the bar] four citizens, onefrom [among the residents of] each court of appeals district and one from the state at-large, to serve as [a member] voting members of said commission[, and]. The terms of appointed members and of the supreme court judge member of the appellate judicial commission serving on January 15, 2013, shall end on that day. The governor shall appoint two members to the commission for terms ending January 15, 2015, and appoint two members for terms ending January 15, 2017. The terms of all subsequently appointed commission members shall end four years after the termination of the prior term. Vacancies occurring in unexpired terms shall be filled for the remainder of the unexpired term. The voting members of the commission shall select one of [their number] the voting members to serve as chairman. Each circuit judicial commission shall consist of five members, one of whom shall be the chief judge of the district of the court of appeals within which the judicial circuit of such commission, or the major portion of the population of said circuit is situated and the remaining four members shall be chosen in the following manner: The members of the bar of this state residing in the judicial circuit of such commission shall elect two of their number to serve as members of said commission, and the governor shall appoint two citizens, not members of the bar, from among the residents of said judicial circuit to serve as members of said commission, the members of the commission shall select one of their number to serve as chairman; and the terms of office of the members of such commission shall be fixed by law, but no law shall increase or diminish the term of any member then in office. No member of any [such] commission other than a judge shall hold any public office, and no member shall hold any official position in a political party. Every [such] commission may act only by the concurrence of a majority of its voting members. The members of [such commission] commissions shall receive no salary or other compensation for their services but they shall receive their necessary traveling and other expenses incurred while actually engaged in the discharge of their official duties. All [such] commissions shall be administered, and all elections provided for under this section shall be held and regulated, under such rules as the supreme court shall promulgate.

Article V, § 25(d), sets forth the process by which the members of the nonpartisan Appellate Judicial Commission and Circuit Judicial Commission are selected. Currently, the Appellate Judicial Commission (“the Commission”) consists of: (1) a judge of the Supreme Court selected by the members of the Supreme Court, (2) three members of the bar of this state selected by members of the bar,² and (3) three citizens who are not permitted to be members of the bar, selected by the Governor.³See Mo. Const. art. V, § 25(d). Thus, the current Appellate Judicial Commission consists of seven members, all of whom are entitled to vote and three of whom must be nonlawyers.

SJR 51(“Amendment 3”) increases the size of the Appellate Judicial Commission to eight members—seven voting members and one nonvoting member. The nonvoting member would be a former judge selectedby the judges of the Supreme Court. Of the seven voting members, three will be members of the bar selected in the same manner as the current provision. The remaining four voting members, however, will be citizens selected by the Governor.⁴ Thus, Amendment 3 (1) eliminates the voting judge member selected by the Supreme Court under the current provision and replaces that position with a nonvoting former judge member, (2) increases the number of voting members selected by the Governor from three to four, and (3) removes the limitation on the Governor that the members he selects cannot be members of the bar.⁵ Amendment 3 does not propose any changes to the method by which members of the circuit judicial commissions are selected.

Since SJR 51 did not include an official summary statement for the referendum, the Secretary of State was required by § 116.160.1 to prepare a summary statement of the measure and transmit it to the attorney general for approval as to the legal content and form of the statement.⁶ Section 116.160.2 dictates that the summary statement submitted “shall contain no more than fifty words, excluding articles” and “shall be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” The summary statement of Amendment 3, drafted by the Secretary of State and forwarded to the Attorney General on June 19, 2012, stated:

Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:

• appoint a majority of the Commission that selects these court nominees; and

• appoint all lawyers to the Commission by removing the requirement that the governor's appointees be nonlawyers?

On June 29, 2012, the Attorney General approved the legal content and form of the summary statement. On July 3, 2012, the Secretary of State certified the official ballot title for Constitutional Amendment 3.

On July 13, 2012, under the authority of § 116.190, the Appellants filed a petition in the Circuit Court of Cole County, challenging the language of the official ballot title as insufficient and unfair and requesting a different summary statement. On September 7, 2012, after the parties filed cross-motions for judgment on the pleadings, the circuit court...