Brown v. Carnahan

• Citation: 370 S.W.3d 637
• Decision Date: 31 July 2012
• Docket Number: SC 92500,SC 92573,Nos. SC 92582,SC 92571,SC 92574.,SC 92564,s. SC 92582
• Parties: Ralph BROWN, Appellant, v. Missouri Secretary of State, Robin CARNAHAN, Respondent, Missouri State Auditor, Thomas Schweich, Respondent, and Missourians for Health and Education, Dudley McCarter, and Peggy Taylor, Respondents. and Victor Allred, Respondent/Cross–Appellant, v. Robin Carnahan, Respondent, Thomas A. Schweich, Appellant/Cross–Respondent, and Missouri Jobs with Justice, Respondent/Cross–Appellant. and Peggy Northcott, et al., Respondents/Cross–Appellants, v. Robin Carnahan, et al., Appellants/Cross–Respondents. and Tiffany Francis, et al., Respondents/Cross–Appellants, v. Robin Carnahan, et al., Appellants/Cross–Respondents, Missourians for Responsible Lending, et al., Appellants/Cross–Respondents. and John Prentzler, Respondent, v. Robin Carnahan, et al., Appellants, Missourians for Responsible Lending, et al., Appellants. and Stephen J. Reuter, Respondent, v. Robin Carnahan, et al., Appellants, Missourians for Responsible Lending, et al., Appellants.
• Court: United States State Supreme Court of Missouri

370 S.W.3d 637

Ralph BROWN, Appellant,
v.
Missouri Secretary of State, Robin CARNAHAN, Respondent,
Missouri State Auditor, Thomas Schweich, Respondent,
and
Missourians for Health and Education, Dudley McCarter, and Peggy Taylor, Respondents.
and
Victor Allred, Respondent/Cross–Appellant,
v.
Robin Carnahan, Respondent,
Thomas A. Schweich, Appellant/Cross–Respondent,
and
Missouri Jobs with Justice, Respondent/Cross–Appellant.
and
Peggy Northcott, et al., Respondents/Cross–Appellants,
v.
Robin Carnahan, et al., Appellants/Cross–Respondents.
and
Tiffany Francis, et al., Respondents/Cross–Appellants,
v.
Robin Carnahan, et al., Appellants/Cross–Respondents,
Missourians for Responsible Lending, et al., Appellants/Cross–Respondents.
and
John Prentzler, Respondent,
v.
Robin Carnahan, et al., Appellants,
Missourians for Responsible Lending, et al., Appellants.
and
Stephen J. Reuter, Respondent,
v.
Robin Carnahan, et al., Appellants,
Missourians for Responsible Lending, et al., Appellants.

Nos. SC 92582, SC 92564, SC 92500, SC 92571, SC 92573, SC 92574.

Supreme Court of Missouri,
En Banc.

July 31, 2012.

[370 S.W.3d 643]

Jeremiah J. Morgan, Deputy Solicitor, Patricia J. Churchill, Attorney General's Office, Jefferson City, for Carnahan.

Ronald R. Holliger, General Counsel, Attorney General's Office, Darrell L. Moore, Whitney S. Miller, Auditor's Office, Jefferson City, for Schweich.

Charles W. Hatfield, Khristine A. Heisinger, Stinson, Morrison, Hecker, LLP, Jefferson City, for Northcott, Reuter and Brown.

Marc H. Ellinger, Stephanie S. Bell, Blitz, Bardgett & Deutsch LC, Jefferson City, for Francis and Hoover.

Edward D. Greim, Todd P. Graves, Clayton J. Callen, Graves, Bartle, Marcus & Garrett LLC, Kansas City, for Allred and Prentzler.

Christopher N. Grant, Loretta K. Haggard, Schuchat Cook & Werner, St. Louis, for Missouri Jobs with Justice.

Lowell D. Pearson, R. Ryan Harding, Husch Blackwell LLP, Jefferson City, for Missourians for Health and Education, McCarter and Taylor.

PER CURIAM.

The appeals consolidated in this opinion arise from lawsuits challenging three proposed initiatives—a tobacco tax initiative, a minimum wage initiative, and a payday

[370 S.W.3d 644]

loan initiative.¹ The underlying suits sought to prevent the initiatives from appearing on Missouri's ballot for the November 2012 election. Each of the cases challenges the constitutional validity of section 116.175,² which directs that the state auditor “shall assess the fiscal impact of” any proposed initiative petition and prepare a fiscal note and fiscal note summary.³ Opponents of the proposed initiatives maintain that section 116.175's statutory directives conflict with Mo. Const. art. IV, sec. 13, which provides that “[n]o duty shall be imposed on [the state auditor] by law which is not related to the supervising and auditing of the receipt and expenditure of public funds.” Each appeal also challenges the fairness and sufficiency of the secretary of state's summary statements and the auditor's fiscal notes and fiscal note summaries for the proposed initiatives.

This Court finds that section 116.175 is constitutional and finds that the auditor's fiscal notes and fiscal note summaries for the proposed initiatives were fair and sufficient. This Court further finds that the secretary of state's summary statements for the initiatives were fair and sufficient. This Court finds no bar to including the secretary of state's summary statements and auditor's fiscal note summaries in the official ballot titles for the proposed initiatives. No issues presented in these appeals and cross-appeals indicate any impediment to placing the proposed initiatives on the ballot.⁴

For the reasons explained below, the trial court's judgment in the tobacco initiative case is affirmed; the judgment in the minimum wage case is affirmed in part and reversed in part; and the judgment in the payday loan initiative cases is affirmed in part and reversed in part.

I. BackgroundA. Constitutional Protections For Citizen Initiatives

Before discussing the merits of these appeals, this Court notes the protections afforded to the citizen initiative petition process provided in Missouri's constitution. This Court previously has stated:

[370 S.W.3d 645]

Nothing in our constitution so closely models participatory democracy in its pure form. 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.” [Mo. Const., art. III, sec. 49].

Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990).

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. However, “[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.

“Before the people vote on an initiative, courts may consider only those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form.” United Gamefowl Breeders Ass'n of Missouri v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000). As such, when initiative petitions are challenged, this Court's primary duty is to determine “whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded.” Blunt, 799 S.W.2d at 827.

B. Procedures for Initiative Petitions

The constitutional requirements for an initiative petition include:

[T]he initiative petition must (1) be signed by 8% of the voters in each of two-thirds of the congressional districts in the state, (2) be filed with the Secretary of State no less than four months before an election, (3) contain a proper enacting clause, and (4) contain no more than one amended and revised constitutional article, or one new article which contains not more than one subject and matters properly connected therewith. [Mo. Const., art. III, sec. 50].

Id.

Before an initiative petition appears on the ballot, the requirements of chapter 116 must be met. Section 116.120.1 provides that the secretary of state shall examine any submitted petition to determine that it complies with the Missouri Constitution and chapter 116. Section 116.332.1 provides that, after receiving a proposed initiative petition, the secretary of state refers a copy of the petition to the attorney general for approval of the sufficiency of the petition as to its form. Section 116.332.1 also provides that a copy of the petition must be sent to the state auditor for “purposes of preparing a fiscal note and fiscal note summary.” See alsosec. 116.175 (instructing that the auditor “shall assess the fiscal impact of the proposed measure”). ⁵

The secretary of state reviews the attorney general's comments regarding the form of the petition and then makes a final

[370 S.W.3d 646]

decision to approve or reject the proposed petition. Sec. 116.332.3. Once a petition is approved as to its content and form, section 116.334.1 instructs that the secretary of state prepare a “concise” summary statement of the proposed measure. Section 116.334.1 provides that the summary statement cannot exceed 100 words, must be written in the form of a question, and cannot use language that is “intentionally argumentative” or that is “likely to create prejudice either for or against the proposed measure.” The secretary of state's summary statement requires approval by the attorney general. Sec. 116.334.1. Pursuant to section 116.180, after the secretary of state receives the attorney general's approval for the summary and receives the approved fiscal note and fiscal note summary, the secretary of state certifies the official ballot title. The official ballot title consists of the secretary of state's summary statement and the fiscal note summary, and it is provided to the person circulating the petition for signatures and must be affixed to each page of the petition prior to its circulation for signatures. Sec. 116.180. The petitioner then begins to circulate the proposed measure to gather the signatures necessary to submit it to the secretary of state for placement on the ballot.⁶

Any citizen may challenge the official ballot title or fiscal note for a proposed initiative. Sec. 116.190.⁷ The appeals at issue in this consolidated opinion reflect such challenges.

II. Common Issues Presented

Opponents to each of the initiatives addressed in this opinion raised arguments that section 116.175 is unconstitutional under Mo. Const. art. IV, sec. 13. Each case also presented a challenge related to the fairness and sufficiency of the secretary of state's summary statement and the auditor's fiscal note and fiscal note summary prepared for the initiatives. These common issues presented are addressed first.

A. Standard of Review

In a court-tried case, this Court will sustain the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. United Gamefowl Breeders, 19 S.W.3d at 141;Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court will construe liberally constitutional and statutory provisions governing the ballot initiative process to ensure the preservation of the people's power. Blunt, 799 S.W.2d at 827. “Statutes that place impediments on the initiative power that are inconsistent with the reservation found in the language of the constitution will be...