Dotson v. Kander

• Decision Date: 30 June 2015
• Docket Number: No. SC 94482,SC 94482
• Parties: D. Samuel Dotson III and Rebecca Morgan, Plaintiffs, v. Missouri Secretary of State Jason Kander, Defendant, Tom Dempsey, Timothy Jones, Ron Richard, Kurt Schaefer and Missourians Protecting the 2nd Amendment, Intervenors.
• Court: Missouri Supreme Court

464 S.W.3d 190

D. Samuel Dotson III and Rebecca Morgan, Plaintiffs

v. Missouri Secretary of State Jason Kander, DefendantTom Dempsey, Timothy Jones, Ron Richard, Kurt Schaefer and Missourians Protecting the 2nd Amendment, Intervenors.

No. SC 94482

Supreme Court of Missouri, en banc .

Opinion issued June 30, 2015

The individuals who brought the election contest were represented by Charles W. Hatfield and Khristine A. Heisinger of Stinson Leonard Street LLP in Jefferson City, (573) 636–6263.

The secretary of state was represented by Deputy Solicitor General Jeremiah J. Morgan and Jonathan M. Hensley of the attorney general's office in Jefferson City, (573) 751–3321.

The legislator-intervenors were represented by David H. Welch, deputy general counsel of the Missouri House of Representatives in Jefferson City, (573) 522–2598; and Marc H. Ellinger and Stephanie Bell of Blitz, Bardgett & Deutsch LC in Jefferson City, (573) 634–2500.

Schaefer and Missourians Protecting the 2nd Amendment were represented by Senator Kurt U. Schaefer of his Jefferson City office, (573) 751–3931 and David G. Brown, an attorney in Columbia, (573) 814–2375.

Opinion

PER CURIAM

This case raises the issue of whether a challenge to the sufficiency and fairness of a ballot title of a proposed measure may be brought after the measure was adopted by voters. This Court holds that a post-election challenge to ballot titles can be brought under chapter 115.¹ As the ballot title was sufficient and fair, there was no irregularity in the August 5, 2014, election.²

I. Factual Background

Samuel Dotson and Rebecca Morgan challenge the sufficiency and fairness of the ballot title for a proposal modifying the right to bear arms in article I, section 23 of the constitution. This is the second time these parties have come before this Court. For a detailed recitation of the underlying facts, see Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014) (Dotson I ). In Dotson I, this Court dismissed the pre-election challenge to the sufficiency and fairness of the ballot title as it was moot under section 115.125.2, RSMo Supp. 2013. Id. at 645. This statute states that “[n]o court shall have the authority to order an individual or issue be placed on the ballot less than six weeks” before an election. The six-week date had already passed before the trial court resolved the merits. Dotson I noted that “judicial review of a claim that a given ballot title was unfair or insufficient (when not previously litigated and finally determined) is available in the context of an election contest should the proposal be adopted.” Id. at 645.

Senate Committee Substitute for Senate Joint Resolution 36 (SJR 36) was approved by voters in the August 5, 2014, primary election. Plaintiffs have now filed an election contest in this Court to challenge the summary statement as an election irregularity pursuant to section 115.555.

II. Challenges to Ballot Titles

If the General Assembly writes the ballot title for a measure it proposes to voters, the title must 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.” Section 116.155.2. The summary statement is limited to 50 words, excluding articles. Id.

Section 116.190, RSMo Supp. 2013, in relevant part, allows any citizen to challenge the official ballot title proposed by the General Assembly before an election takes place. The challenger must “state the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair.”³ Section 116.190.3. This section is a procedural safeguard that is “designed to assure that the desirability of the proposed amendment may be best judged by the people in the voting booth.” Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 (Mo. banc 1981). Such challenges are necessary “to prevent a self-serving faction from imposing its will upon the people without their full realization of the effects.” See id. at 11–12 (discussing a challenge to the ballot title of a citizen-proposed amendment). Judicial review of a ballot title is especially important in a legislature-proposed ballot initiative. This is true because the proponent of the initiative—the General Assembly—writes the ballot title as well as the proposed amendment without any review of the ballot title by the executive department.⁴ Compare section 116.025, RSMo Supp. 2013, with section 116.155.

Pre-election review under section 116.190 can be an elusive remedy, however, if there is a relatively short period of time between when the ballot title is certified and when the election is to be held because courts are prohibited from adding issues to ballots within six weeks of an election. See section 115.125.2. Dotson I highlighted this problem: the Dotson I plaintiffs filed their suit on the same day the ballot title was certified, but the six-week deadline for changes prior to an election was 11 days later. See Dotson I, 435 S.W.3d at 644. Because the six-week period passed before the trial court issued a judgment, this Court determined that the case and the appeal were moot. Id. at 645. It was unlikely that both the trial court and appellate judicial review could have been completed within 11 days. See also Cole v. Carnahan, 272 S.W.3d 392, 395 (Mo. App. 2008). Because of the narrow window for judicial review, challengers, due to no delay on their part, were foreclosed from bringing their challenge. This scenario can happen when, as here, the governor places a legislative ballot proposal that was passed during the preceding legislative session on the August primary ballot.

In contrast to a pre -election challenge under section 116.190, chapter 115 allows registered voters to contest “[t]he result of any election on any question” after an election has been held. Section 115.553.2 (emphasis added). Chapter 115 provides guidelines for post- election challenges to election results for “irregularities” that occur during elections. See, e.g., section 115.593. This chapter endeavors to ensure that the results of each election are valid.

“Irregularity” is not defined in chapter 115, but courts have considered the violation of election statutes an irregularity that may be addressed in an election contest. Gerrard v. Bd. of Election Comm'rs, 913 S.W.2d 88, 89 (Mo. App. 1995) ; see Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989). Additionally, section 116.020 states, in relevant part, that “[t]he election procedures contained in chapter 115 shall apply to elections on statewide ballot measures.” As a result, under section 116.020, a challenge to the ballot title of a proposed constitutional amendment may be brought as an irregularity in a post-election action under chapter 115, so long as the issue has not been previously litigated and determined. Dotson I, 435 S.W.3d at 645.

The state posits several reasons why the plaintiffs cannot challenge the ballot title in a chapter 115 post-election contest. It first argues that chapter 116 is the exclusive means to challenge the ballot title of a proposed constitutional amendment. Although chapter 116 provides a pre-election challenge to a ballot title, there is no statutory indication that it is the only vehicle for such a challenge. In Marre, this Court held that a candidate for office could challenge the qualifications of certain voters in a post-election contest even though there were other statutes that outlined the procedures for pre-election challenges on this issue. 775 S.W.2d at 953 ; see alsoUnited Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000) (rejecting argument that pre-election review under chapter 116 is the exclusive way to challenge an initiative measure); Beatty v. Metro. St. Louis Sewer Dist., 700 S.W.2d 831, 838 (Mo. banc 1985) (“The wording of the proposition on a ballot and the propriety of the notice of election provided [in a special sewer district election] are issues cognizable only in an election contest.”).

The state also argues that the specific timeline for filing a pre-election challenge in section 116.190 should control over the general election contest provisions in chapter 115, relying on Knight v. Carnahan, 282 S.W.3d 9, 20–21 (Mo. App. 2009). Reliance on Knight is misplaced as the issue there was whether the 10–day filing deadline in section 116.190 controlled over the filing deadline in sections 116.120 and 116.200. Knight does not purport to resolve whether a plaintiff may bring a section 116.190 claim under chapter 115. In fact, it notes that this is an open question. 282 S.W.3d at 15–16 (noting that Cole, 272 S.W.3d 392 “left open the question of what remedies might be available post-election based on an invalid ballot summary”).

The state's next contention is that all the “irregularities” referenced in chapter 115 refer to conduct during an election, not the substance of the election provisions themselves. See, e.g., section 115.053.3 (election deputies may “witness and report to the election authority any failure of duty, fraud or irregularity”); 115.107.2, RSMo Supp. 2013 (“Watchers are to observe the counting of the votes and present any complaint of irregularity or law violation”). In support, the state notes that chapter 115 contemplates a court taking evidence of an irregularity, as opposed to making a legal determination regarding the sufficiency and fairness of a ballot title. See, e.g., section 115.561 (commissioners have authority to take depositions, compel attendance and take witness testimony, and compel discovery in election contest).

In this case, this Court appointed a commissioner to take evidence, and the parties submitted a joint stipulation of facts. While the plaintiffs did not present evidence of particular voters who were misled by the ballot title, this is not fatal to their claim under chapter 115. Rather, the plaintiffs in a post-election ballot title challenge are free to present...