Fitzpatrick v. Ashcroft
| Decision Date | 13 January 2022 |
| Docket Number | WD85060 |
| Court | Court of Appeal of Missouri (US) |
| Parties | SCOTT FITZPATRICK, IN HIS OFFICIAL CAPACITY AS MISSOURI STATE TREASURER, Appellant, v. JOHN R. ASHCROFT, IN HIS OFFICIAL CAPACITY AS MISSOURI SECRETARY OF STATE, Respondent. |
Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel Richard Green, Judge.
Before Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick, Judge and Thomas N. Chapman, Judge.
On May 4, 2021, the General Assembly passed House Joint Resolution 35 ("HJR 35"), which proposes to amend Article IV Section 15 of the Missouri Constitution to expand the Missouri State Treasurer's authority to invest state funds.
Scott Fitzpatrick, in his official capacity as Missouri State Treasurer, ("Treasurer"), filed suit against John R. Ashcroft, in his official capacity as Missouri Secretary of State ("Secretary of State") in the Circuit Court of Cole County on July 19, 2021. The Treasurer challenged the summary statement in the official ballot title for HJR 35 prepared by the Secretary of State. The Treasurer also challenged the fair ballot language for HJR 35 prepared by the Secretary of State.
The Treasurer's challenges were tried on December 2, 2021 on a stipulated record. The circuit court entered its findings of fact, conclusions of law, and final judgment on December 13, 2021 ("Judgment"). The circuit court found that the official ballot title for HJR 35 was not unfair or insufficient, and certified the official ballot title to the Secretary of State. The circuit court found that the fair ballot language for HJR 35 was not unfair or insufficient except with respect to the "no" section, which the parties stipulated was incomplete and missing terms. The circuit court rewrote the "no" section of the fair ballot language consistent with the parties' stipulation and certified the revised fair ballot language to the Secretary of State.
The Treasurer appeals. Finding no error, we affirm.
Factual Background[1]
During the 2021 regular session, the General Assembly passed HJR 35. HJR 35 submits to voters a proposed amendment to Article IV, section 15 of the Missouri Constitution. The proposed amendment would change from five to seven years the time within which moneys invested by the Treasurer in obligations of the United States government or any agency or instrumentality thereof must mature and become payable. In addition, the proposed amendment would expand the Treasurer's constitutionally described investment authority as follows:
The treasurer may also invest in municipal securities possessing one of the five highest long term ratings or the highest short term rating issued by a nationally recognized rating agency and maturing and becoming payable not more than five years from the date of purchase. The treasurer may also invest in other reasonable and prudent financial instruments and securities as otherwise provided by law.
HJR 35 did not include ballot language drafted by the General Assembly. On May 25, 2021, HJR 35 was signed by the Speaker of the Missouri House of Representatives and the President Pro Tem of the Missouri Senate, and delivered to the Secretary of State.
The Secretary of State prepared a proposed summary statement for HJR 35, and transmitted same to Attorney General Eric Schmitt ("Attorney General") on June 14, 2021, as required by section 116.160.[2] The Secretary of State's proposed summary statement read as follows:
On June 28, 2021, the Attorney General approved the summary statement for HJR 35. The Secretary of State then certified the official ballot title for HJR 35, (which includes the summary statement), [3] on July 9, 2021, as required by section 116.180.
The Secretary of State also prepared proposed fair ballot language for HJR 35, and transmitted same to the Attorney General on June 14, 2021, as required by section 116.025. The Secretary of State's proposed fair ballot language read as follows:
If passed, this measure will have no impact on taxes. On June 28, 2021, the Attorney General approved the fair ballot language for HJR 35. The Secretary of State then designated HJR 35 as "Amendment 1," and certified the measure for inclusion on the November 8, 2022 general election ballot.
The Treasurer filed suit on July 19, 2021 in the Circuit Court of Cole County, challenging the summary statement in the official ballot title and the fair ballot language. The Treasurer objected to use of the word "override" in the first bullet point of the summary statement. The Treasurer argued that the word "override" in the first bullet point of the summary statement is "intentionally argumentative and likely to create a prejudice against the proposed measure."
The Treasurer objected to the fair ballot language, arguing that the first sentence of the "yes" section "does not fairly or accurately describe the measure because it erroneously specifies that a 'yes' vote would amend the Missouri Constitution to grant the General Assembly statutory authority to invest state funds." The Treasurer argued that "[t]his is misleading and undeniably false" because the Treasurer "has the exclusive authority to invest state funds." The Treasurer also objected to the third sentence of the "yes" section of the fair ballot language, arguing it is misleading "because it implies the General Assembly would be the sole authority for determining investment avenues available to the State Treasurer," when in fact it is within the Treasurer's "sole discretion" to select among constitutionally authorized investment options. Finally, the Treasurer argued that the "no" section of the fair ballot language is incomplete and missing terms.
The Treasurer's suit was tried to the circuit court on a stipulated record on December 2, 2021. The circuit court entered its Judgment on December 13, 2021. The circuit court found that the summary statement was not unfair or insufficient, and certified the summary statement in the form originally proposed and certified by the Secretary of State.
The circuit court found that the "yes" section of the fair ballot language was not unfair or insufficient, and certified the "yes" section of the fair ballot language in the form originally proposed by the Secretary of State.
The circuit court found that the Treasurer and the Secretary of State agreed that the "no" section of the fair ballot language is incomplete and missing terms, and jointly proposed adding the words "investment option" after the word "those." The circuit court agreed with the jointly proposed modification, and certified an alternative "no" section for the fair ballot language as follows:
A "no" vote will not amend the Missouri Constitution and limit the treasurer to investing state funds only in those investment options currently approved by the Constitution.
The Treasurer filed an appeal from the Judgment on December 27, 2021, fourteen days after the Judgment was entered. This court entered an order expediting submission of the record on appeal, briefing, and oral argument, as section 116.190.5 requires challenges to official ballot titles and fair ballot language to be "fully and finally adjudicated within one hundred eighty days of filing, and more than fifty-six days prior to election in which the measure is to appear, including all appeals." Based on section 116.190.5, the Treasurer advised this court in his notice of appeal that this case, including appeals, must be finally adjudicated by January 14, 2022.[4]
The Secretary of State filed a motion to dismiss the Treasurer's appeal as untimely. The motion was taken with the case. Because the "[t]imely filing of a notice of appeal is jurisdictional," we must resolve the Secretary of State's motion to dismiss before addressing the merits of the Treasurer's appeal. Spicer v. Donald N. Spicer Revocable Living Tr., 336 S.W.3d 466, 471 (Mo. banc 2011) (quoting Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc 2005)).
Section 116.190 establishes a right to challenge the sufficiency of an official ballot title, including the summary statement therein contained. By cross-reference, section 116.190 also establishes a right to challenge the sufficiency of fair ballot language, as section 116.025 provides that "fair ballot language statements may be challenged in accordance with section 116.190." Specifically, section 116.190.1 provides that "[a]ny citizen[5] . . . may bring an action in the circuit court of Cole County" to challenge an official ballot title or, by cross-reference, fair ballot language.
Section 116.190.4 requires expedited resolution of section 116.190 challenges. In addition to noting that the action "shall be...
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