Cures Without Cloning v. Pund
| Decision Date | 02 May 2008 |
| Docket Number | No. WD 69390.,No. WD 69376.,No. WD 69391.,WD 69376.,WD 69390.,WD 69391. |
| Citation | 259 S.W.3d 76 |
| Parties | CURES WITHOUT CLONING, Lori Buffa, M.D. and Chelsea Zimmerman, Appellant-Respondents, v. Robert E. PUND and Susan Baier, Respondent-Appellants; Robin Carnahan, Secretary of State, Respondent-Appellant; and Susan Montee, State Auditor, Defendant; Kansas City Area Life Sciences Institute Association and Kansas City Area Life Sciences Institute, Amicus Curiae; Robert P. George, D.Phil, J.D. and Maureen L. Condic, PH.D, Amicus Curiae. |
| Court | Missouri Court of Appeals |
Edward D. Greim, Kansas City, Randall M. England, Jefferson City, for Appellant/Respondent.
Ann K. Covington, George Bartlett, Karen K. Mitchell, James McAdams, Heidi Vollett, Jefferson City, David Welte, Kansas City, Kenneth Marshall, St. Louis, for Respondent/Appellant.
Joselyn Verschelden, Kansas City, for amicus curiae.
Before HOWARD, C.J., SMART and HARDWICK, JJ.
This case arises from a ballot initiative petition to amend the stem cell research provisions in the Missouri Constitution, as approved by Missouri voters in 2006. The proponents of the petition — Cures Without Cloning, Lori Buffa, and Chelsea Zimmerman (collectively "Plaintiffs") — appeal from the circuit court's dismissal of their constitutional claims against Robin Carnahan, in her official capacity as the Missouri Secretary of State ("Secretary"), in connection with the Secretary's preparation of a summary statement for the ballot initiative. In a cross-appeal, the Secretary and intervenors, Robert Pund and Susan Baier, challenge the circuit court's certification of a new summary statement based on the court's finding that the statement prepared by the Secretary was "insufficient and unfair" pursuant to Section 116.190.1 We affirm in part, reverse in part, and remand for certification of a corrected summary statement.
In November of 2006, Missouri voters approved a constitutional amendment referred to herein as the "Stem Cell Research and Cures Act." Mo. Const. Art. III, Section 38(d)1. The purpose of the amendment was to "ensure that Missouri patients have access to stem cell therapies and cures, that Missouri researchers can conduct stem cell research in the state and that all such research is conducted safely and ethically." To that end, the amendment provides that "any stem cell research permitted under federal law may be conducted in Missouri and any stem cell therapies and cures permitted under federal law may be provided to patients in Missouri" subject to certain limitations on such research enumerated in the Act. Mo. Const. art. III, section 38(d)2.
One of the stem cell research techniques allowed by the Act is somatic cell nuclear transfer ("SCNT"), a process that occurs when the nucleus of an unfertilized human egg is removed and replaced with the nucleus of an ordinary body cell (a somatic cell). Missourians Against Human Cloning v. Carnahan, 190 S.W.3d 451, 454 (Mo. App.2006) ("MAHC"). This transfer process creates a single cell that contains the 46 chromosomes of the body cell donor, which, with stimulation, can be coaxed to divide and eventually form a small cluster of cells known as a blastocyst. Id. From the blastocyst, researchers hope to extract undifferentiated stem cells and "employ this potential to mature into virtually any type of body cell to provide a repair system for the treatment of a wide variety of illnesses like Parkinson's or diabetes." Id.
A blastocyst produced through SCNT could, theoretically, be implanted into a womb and result in the development of a cloned human being. Such cloning is specifically prohibited by the Stem Cell Research and Cures Act, which states: "No person may clone or attempt to clone a human being." Mo. Const. art. III, §§ 38(d)2(1) and 38(d)3. "Clone or attempt to clone a human being" is defined in Section 38(d)6(2) as "to implant in a uterus or attempt to implant in a uterus anything other than the product of fertilization of an egg of a human female by a sperm of a human male for the purpose of initiating a pregnancy that could result in the creation of a human fetus, or the birth of a human being." Thus, under current Missouri law, cloning would begin only upon implantation or attempted implantation of the stem cell in a uterus.
Plaintiffs believe that cloning begins before implantation when SCNT is used to produce a human embryo. Accordingly, they have proposed a new ballot initiative that would amend the definition of cloning in Section 38(d) to include the pre-implantation stage of SCNT and disallow public funding for research or experimentation related thereto. On September 4, 2007, the plaintiffs submitted the following initiative proposal to the Secretary for amendment of the Stem Cell Research and Cures Act:
One new section is adopted by adding one new section to be known as Section 38(e) of Article III, to read as follows:
Section 38(e) 1. It shall be unlawful to clone or attempt to clone a human being as that term is defined in subsection 2 of this section. Researchers may conduct stem cell research to discover cures for disease and develop stem cell therapies and cures, provided that the research complies with the limitations of this section and Section 38(d). The prohibitions of this section shall be in addition to the prohibitions of Section 38(d).
2. For all purposes within this article, "Clone or attempt to clone a human being" means create or attempt to create a human embryo at any stage, which shall include the one-cell stage onward, by means other than fertilization of a human egg by a human sperm.
3. No taxpayer dollars shall be expended: (1) to clone or attempt to clone a human being; or (2) to research or experiment using a human embryo, or any part of a human embryo, derived from cloning or attempting to clone a human being.
The Secretary is responsible for certifying the official ballot title of an initiative. § 116.180. The ballot title has two parts: a summary statement and a fiscal note summary.2 § 116.010(4). Once an initiative proposal is submitted to the Secretary and the Attorney General and approved as to form, the Secretary must prepare a summary statement of the initiative, not to exceed 100 words. §§ 116.332, 116.334. The summary "shall be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." § 166.334. The summary statement is then affixed to each page of the initiative petition before being circulated for signatures. § 116.180.
On October 10, 2007, the Secretary certified an official ballot title for the Plaintiffs' proposed initiative, including the following summary statement:
Shall the Missouri Constitution be amended to repeal the current ban on human cloning or attempted cloning and to limit Missouri patients' access to stem cell research, therapies and cures approved by voters in November 2006 by:
• redefining the ban on human cloning or attempted cloning to criminalize and impose civil penalties for some existing research, therapies and cures; and
• prohibiting hospitals or other institutions from using public funds to conduct such research?
On October 19, 2007, the Plaintiffs filed a circuit court action challenging the ballot title and asserting various constitutional claims against the Secretary. § 116.190. The court allowed state taxpayers Robert Pund and Susan Baier to intervene in the action in the action as defendants. Following a hearing on cross-motions for judgment on the pleadings, the court denied the Plaintiffs' challenge to the fiscal note portion of the ballot summary and ruled that the constitutional claims failed as a matter of law. The court sustained the Plaintiffs' challenge to the ballot title summary statement, finding it "insufficient and unfair" pursuant to Section 116.190. The court also certified to the Secretary the following summary statement for the ballot initiative:
Should the Missouri Constitution be amended to change the definition of cloning and ban some of the research as approved by voters in November, 2006 by:
• prohibiting human cloning that is conducted by creating a human embryo at any stage from the one-cell stage forward;
• prohibiting the expenditure of taxpayer dollars on research or experimentation on human cloning;
• allowing stem cell research, therapies and cures that complies (sic) with these prohibitions and the prohibitions of Section 38(d) of the Constitution?
This appeal and cross-appeal followed. For ease of discussion, we address the issues in the cross-appeal first.
In cases where the trial court does not hear evidence, it may hear argument and enter its judgment on the pleadings. Rule 55.27(b).3 A grant of judgment on the pleadings is reviewed de novo, without deference to the trial court's ruling. Millers Mut. Ins. Ass'n of Ill. v. Shell Oil Co., 959 S.W.2d 864, 866-67 (Mo.App.1997).
The Secretary and Intervenors contend the circuit court erred in determining the original summary statement was insufficient and unfair. They further argue that even if the original summary statement did not comply with statutory mandates, the circuit court exceeded its authority in re-writing and certifying a new summary statement.
Under Section 116.334, the Secretary is charged with preparing a summary statement that is "neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." § 116.334.1. As opponents of the official ballot title, the Plaintiffs have the burden of showing why the Secretary's summary statement is "insufficient or unfair." § 116.190.3. Plaintiffs are entitled to a "different summary statement" if that requirement...
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