Gralike v. Cook
| Decision Date | 16 November 1998 |
| Docket Number | No. 98-1494,98-1494 |
| Citation | 191 F.3d 911 |
| Parties | (8th Cir. 1999) Donald James Gralike, Plaintiff-Appellee, Mike Harman, Intervenor on Appeal,. v. Rebecca McDowell Cook, Defendant-Appellant. Professor Kris W. Kobach, Amicus on Behalf of Appellant League of Women Voters of the United States; League of Women Voters of Missouri, Amici on Behalf of Appellee Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Western District of Missouri
[Copyrighted Material Omitted] Before McMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.
Appellant Rebecca McDowell Cook, in her official capacity as Secretary of State of the State of Missouri, appeals from a final order entered in the United States District Court1 for the Western District of Missouri granting summary judgment in favor of appellee Donald James Gralike, and invalidating as unconstitutional the 1996 Missouri ballot initiative concerning term limits for members of the United States Congress, codified at Article VIII, Sections15-22 of the Missouri Constitution.2 See Gralike v. Cook, 996 F. Supp. 917 (W.D. Mo. 1998)(Gralike III). For reversal, Cook argues that the district court erred in granting summary judgment for appellee because the amendment does not violate the First Amendment or Articles I or V of the United States Constitution. For the reasons discussed below, we affirm the judgment of the district court.
Jurisdiction in the district court was proper based upon 28 U.S.C. 1331, 1343. Jurisdiction on appeal is proper based upon 28 U.S.C. 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
In November 1996 the voters of Missouri passed an amendment to Article VIII of the Missouri Constitution (hereinafter "Missouri Amendment" or "Amendment") to limit the number of terms any individual may serve in the United States Congress. The Amendment seeks to limit congressional service to three terms in the House of Representatives and two terms in the Senate.3 See MO. CONST. Art. VIII 16. To achieve this goal, the Missouri Amendment orders members of Missouri's congressional delegation to use their authority to amend the United States Constitution to impose the term limits in 16 on Congressional service. See id. 17.
If a Missouri Representative or Senator fails to comply with this order, the Missouri Amendment dictates that the label "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed next to his or her name on all ballots during the next election. Id. The Missouri Amendment defines a failure to comply with the instructions as: (1) failure to vote in favor of a term limit amendment conforming with 16; (2) failure to second it if a second is lacking; (3) failure to propose or otherwise bring to a vote a term limit amendment conforming with 16; (4) failure to vote favorably on measures to bring such an amendment before committee; (5) failure to vote against all measures to delay, table, or otherwise prevent a vote by the full body; (6) failure to vote against amendments allowing longer terms of Congressional service than 16 allows; (7) sponsoring or cosponsoring an amendment with longer terms than those in 16; and (8) failure to ensure that all votes on term limits are recorded and available to the public. See id.
The Missouri Amendment requires non-incumbent candidates to take a pledge to use their authority to amend the United States Constitution to impose the term limits in 16 if elected. It orders that those who do not take the pledge have the label "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed next to their names on the ballot. Id. 18. To avoid being labeled on the ballot, non-incumbent candidates must take the following pledge:
I support term limits and pledge to use all my legislative powers to enact the proposed Constitutional Amendment set forth in the Term Limits Act of 1996. If elected, I pledge to vote in such a way that the designation "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" will not appear adjacent to my name.
18(3).
For both incumbent and non-incumbent candidates, the Missouri Amendment requires the Secretary of State to decide whether a label will be printed on the ballot and to consider public comment in making that determination. See id. 19 (1-4). It allows individual voters to appeal the Secretary of State's decision not to print the label by a candidate's name directly to the Missouri Supreme Court, in which case the Secretary of State must produce clear and convincing evidence that the candidate conformed with the initiative or took the pledge. It also permits a candidate, whom the Secretary of State decides shall have the label appear next to his or her name on the ballot, to appeal this decision to the Missouri Supreme Court, in which case the candidate must produce clear and convincing evidence why the label should not be printed on the ballot. See id. 19(5, 6). In addition, the Missouri Amendment automatically repeals itself if and when the United States Constitution is amended to conform with the 16 term limits. See id. 20. It also grants the Missouri Supreme Court original jurisdiction to hear challenges to the Amendment. See id. 21. Finally, it contains a severability clause. See id. 22.
Soon after its passage, appellee initiated this action in federal district court challenging the Missouri Amendment on several federal constitutional grounds. Appellee is not currently a member of the Missouri congressional delegation, but he was a candidate for the third district Congressional seat in 1998 and has issued a declaration of his intent to run for the same seat in 2000. The district court issued three memorandum orders addressing different motions by the parties. In the first order, the district court denied in part and granted in part appellant's motion to dismiss, finding that appellee did have standing to sue, did meet the requirements for injunctive relief, that appellant was not protected by Eleventh Amendment immunity, that the court need not abstain from judgment since there were no unanswered questions of state law, and that the court need not certify questions of federal law to the Missouri Supreme Court. since that court has held that it lacks jurisdiction over such questions.4 See Gralike v. Cook, 996 F. Supp. 889 (W.D. Mo. 1998) (Gralike I). In its second order, the district court granted in part and denied in part appellant's motion to dismiss for failure to state a claim; it denied appellant's motion to dismiss appellee's claims that the Missouri Amendment violates Article I, Article V, and the First and Fourteenth Amendments of the United States Constitution, but granted her motion to dismiss appellee's claim that 21 of the Missouri Amendment violates the Supremacy Clause of the United States Constitution. See id., 996 F. Supp. 901 (W.D. Mo. 1998) (Gralike II). In its final order in this case, the district court granted appellee's motion for summary judgment on his Article I, Article V, and First Amendment Claims; the district court did not reach plaintiff-appellee's Due Process vagueness claim because it determined that the other three claims were sufficient to dispose of the case. See id., 996 F.Supp. 917 (W.D.Mo. 1998)(Gralike III). The district court, in Gralike III, relied upon its earlier order in Gralike II for the analysis supporting its decision to grant summary judgment for plaintiff-appellee. Judgment was entered for appellee, and appellant timely appealed.
We review decisions to grant summary judgment de novo, reviewing the facts in the light most favorable to the non-moving party. See Barnhart v. UNUM Life Insurance Co. of America, 179 F.3d 583, 587 (8th Cir.1999). We will affirm a grant of summary judgment if, viewed in the light most favorable to the non-moving party, no genuine issue of material fact exists and the moving party is. entitled to judgment as a matter of law. See, e.g., Hughes v. Ortho Pharmaceutical Corp., 177 F.3d 701, 704 (8th Cir.1999).
Appellant argues that the district court erred in holding that the Missouri Amendment violates the First Amendment guarantee of free speech. First, she argues that, because the Missouri Amendment imposes no sanction on candidates for United States Congress for failure to speak, the district court erred in concluding that the Missouri Amendment compels or coerces candidates to speak. Second, she argues that the district court should not have analyzed the Missouri Amendment under strict scrutiny review, but rather should have balanced candidates' right to keep their views on term limits secret with the electorate's right to know the views of candidates. Furthermore, she points out, the Amendment was the result of a popular election, and the courts should be especially careful when considering legislation passed by direct democracy. We agree with the district court's well-reasoned analysis, and reject appellant's arguments.
1. Compelled speech
It is well established that the First Amendment to the United States Constitution bars not only state action which restricts free expression but also state action which compels individuals to speak or express a certain point of view. See Wooley v. Maynard, 430 U.S. 705, 714 (1977) (Wooley); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (Barnette); see also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241(1974) (Miami Herald); cf. Scope Pictures v. City of Kansas City, 140 F.3d 1201(8th Cir. 1998); United States v. Sindel, 53 F.3d 874 (8 th Cir. 1995). Moreover, "[t]he burden upon freedom of expression is particularly great where, as here, the compelled speech is in the public context." Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 522 (1991). We hold that the Missouri Amendment is an. impermissible attempt by the State of Missouri to compel candidates to...
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