Calzone v. Ashcroft, WD 82026

• Decision Date: 04 September 2018
• Docket Number: WD 82026
• Citation: 559 S.W.3d 32
• Parties: Ronald J. CALZONE and C. Michael Moon, Appellants, v. John R. ASHCROFT, et al., Respondents.
• Court: Missouri Court of Appeals

559 S.W.3d 32

Ronald J. CALZONE and C. Michael Moon, Appellants,

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

WD 82026

Missouri Court of Appeals, Western District.

Opinion filed: September 4, 2018

Ron Calzone, Dixon, MO, Appellant Acting Pro-se.

C. Michael Moon, Ash Grove, MO, Appellant Acting Pro-se.

Jason K. Lewis, Jefferson City, MO, Counsel for Respondent, Ashcroft.

Charles W. Hatfield, Jefferson City, MO, Counsel for Respondents, Safermo.com and Terry Briggs.

Alexander Barrett, Jefferson City, MO, Co-Counsel for Respondents, Safermo.com and Briggs.

Before Special Division: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge

VICTOR C. HOWARD, JUDGE

Ronald Calzone and Michael Moon (Appellants) filed this action for declaratory judgment and to enjoin the Secretary of State from placing on the November 2018 general election a ballot measure directly referred to the people by the General Assembly. The measure was introduced and ultimately passed by the General Assembly as H.B. 1460. Appellants asserted that H.B. 1460 is unconstitutional due to procedural infirmities. The circuit court entered judgment on the pleadings in favor of the Secretary of State. The case is not ripe for pre-election judicial review. Pursuant to Rule 84.14,¹ this court issues the judgment that the trial court should have entered and dismisses the petition without prejudice.

Background

H.B. 1460 was first introduced and read in the Missouri House of Representatives on January 3, 2018, as a bill with the title, "AN ACT To repeal section 143.121, RSMo, and to enact in lieu thereof one new section relating to a tax deduction for certain Olympic athletes." On May 18, 2018, the Missouri Senate third read and passed Senate Substitute 2 for H.B. 1460. The same day, the Missouri House truly agreed and finally passed Senate Substitute 2 for H.B. 1460. When H.B. 1460 was finally passed, its title was, "AN ACT To repeal sections 142.803 and 143.121, RSMo, and to enact in lieu thereof three new sections relating to state revenues, with a referendum clause." The Speaker of the House and Pro Tem of the Senate signed H.B. 1460 on May 30, 2018, and H.B. 1460 was delivered to the Secretary of State’s Office that day. The General Assembly included an official ballot title, including a summary statement and fiscal note summary. On June 1, 2018, the Secretary of State certified the General Assembly’s official ballot title.

Appellants filed this lawsuit against the Secretary of State and others on July 2, 2018. They claimed that H.B. 1460 violates the Missouri Constitution’s original purpose, single-subject, and clear-title requirements in Article III, sections 21 and 23 of the Missouri Constitution. They also claimed Article III, sections 21 and 23 were violated when H.B. 1460’s title was changed during the amendment process. SaferMO.com, a political action committee and supporter of the ballot measure, and its treasurer, Terry Briggs, filed a motion to intervene, and the trial court sustained the motion. The Secretary and other defendants filed a motion to dismiss based on ripeness or, in the alternative, motion for judgment on the pleadings.

Following written and oral arguments of the parties, the circuit court entered judgment in favor of the Secretary of State and other defendants. It found that the case is ripe and that H.B. 1460 does not clearly and undoubtedly violate article III, sections 21 and 23. This appeal by Appellants followed.

Ripeness

Before addressing Appellants' claims that H.B. 1460 violates article III, sections 21 and 23, this court must determine whether the issues present a justiciable controversy. Ripeness, like standing, is an element of justiciability. Schweich v. Nixon , 408 S.W.3d 769, 773-74 (Mo. banc 2013). A case is ripe if "the parties' dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character." Id. at 774 (internal quotes and citation omitted). "A court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination." Id.

Missouri courts recognize and follow a general rule against pre-election judicial review concerning the substantive legality of ballot measures. Manz v. Prairie Township Fire Protection Bd. , 463 S.W.3d 831, 835 (Mo. App. W.D. 2015) ; State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos , 35 S.W.3d 457, 468 (Mo. App. E.D. 2000). The rationale for such rule is that because the election might result in the proposed measure being voted down, no justiciable controversy ripe for adjudication exists unless and until the measure is approved and becomes law. Klos , 35 S.W.3d at 468 (citing State ex rel. Trotter v. Cirtin , 941 S.W.2d 498, 500 (Mo. banc 1997), and other cases). "Courts do not sit in judgment on the wisdom or folly of proposals. Neither will courts give advisory opinions as to whether a particular proposal would, if adopted , violate some superseding fundamental law...." Missourians to Protect the Initiative Process v. Blunt , 799 S.W.2d 824, 827 (Mo. banc 1990). See also Boeving v. Kander , 496 S.W.3d 498, 511 (Mo. banc 2016) ; Brown v. Carnahan , 370 S.W.3d 637, 645 (Mo. banc 2012).

Courts may, however, consider procedural or ballot issues that have a bearing upon the integrity of the election itself prior to presentation of a proposal to the people. Cirtin , 941 S.W.2d at 500 ; Manz , 463 S.W.3d at 836. "Our single function is to ask 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." Missourians to Protect the Initiative Process , 799 S.W.2d at 827. Accordingly, "pre-election challenges are limited to claims that procedures for submitting a proposal to the voters were not followed." City of Kansas City v. Kansas City Bd. of Election Comm'rs , 505 S.W.3d 795, 798 (Mo. banc 2017).

The circuit court determined that this case is ripe pre-election under Missourians to Protect the Initiative Process v. Blunt , 799 S.W.2d 824 (Mo. banc 1990). That case involved a proposed initiative petition to amend the state’s constitution. Id. at 826. The trial court enjoined the Secretary of State from placing the initiative proposal on the ballot finding that it did not comply with the provisions of article III, section 50 requiring that petitions for constitutional amendments contain no "more than one subject and matters properly connected therewith." Id. at 826-27. On appeal, the Secretary of State and the intervenor that originally submitted the proposed initiative petition argued that the trial court did not have authority to consider whether the proposal complied with the single subject requirement of article III, section 50 prior to the election. Id. at 827.

The Missouri Supreme Court disagreed. It noted several cases in which courts conducted pre-election reviews to determine if conditions precedent to placing a proposal on the ballot were met. Id. at 828. It held that ultimately, the plain language and reasonable construction of the constitution and statutory provisions relating to the initiative process governs pre-election judicial review of initiative measures. Id.

The Court explained that among other prerequisites, article III, section 50 provides, "Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith." Id. It held that any reasonable construction of article III, section 50 leads to the inescapable conclusion that if the prerequisites of the article are not met, the proposal is not to be on the ballot. Id. The Court further explained that the legislature charged the Secretary of State with determining whether an initiative petition complies with the Missouri Constitution and chapter 116, which at a minimum requires the Secretary to insure that the threshold requirements of article III, section 50 are met, and that after the Secretary certifies a petition as sufficient or insufficient, any citizen may apply to the circuit court to compel the Secretary to reverse the decision. Id. at 828-29 (citing §§ 116.120.1 and 116.200, RSMo 1986 ). Thus, under the constitution and statutes relating to the initiative process, any controversy as to whether the prerequisites of article III, section 50 have been met is ripe for judicial determination when the Secretary of State makes a decision to submit or refuse to submit an initiative to the voters. Id. at 828.

This case, however, does not involve an initiative petition but a referendum ordered by the General Assembly. Under article III, section 49 of the Missouri Constitution, the people reserve to themselves two powers to enact and reject laws: "The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly, and also reserve power to approve or reject by referendum any act of the general assembly except as hereinafter provided." The first power is the initiative, and the second is the referendum. Stickler v. Ashcroft , 539 S.W.3d 702, 712 n.8 (Mo. App. W.D. 2017) (quoting MO. CONST. art. IV. § 57 (1908), the amendment that created the initiative and referendum). An initiative allows the people to bypass their elected representatives and reserves direct lawmaking power with the voters of the state. Brown v. Carnahan , 370 S.W.3d 637, 673 (Mo. banc 2012) (Fischer, J., concurring). An initiative petition can propose amendments to the constitution or can propose laws. MO. CONST. art. III, §§ 49 and 50.

On the other hand, a referendum is a reservation by the people of the right to have submitted to them for their approval or rejection any laws passed by the legislature, with certain...