Hill v. Ashcroft

• Decision Date: 27 June 2017
• Docket Number: WD 80637, WD 80639 , WD 80619, WD 80631,WD 80613 Consolidated with WD 80614, WD 80633, WD 80623, WD 80615, WD 80621, WD 80622, WD 80635, WD 80618, WD 80616, WD 80638, WD 80620, WD 80627, WD 80632, WD 80617, WD 80634, WD 80636, WD 80641.
• Parties: Mary HILL, et al., Appellant-Respondents, v. John R. ASHCROFT, Secretary of State of Missouri, Respondent, Mike Louis, Respondent-Appellant.
• Court: Missouri Court of Appeals

526 S.W.3d 299

Mary HILL, et al., Appellant-Respondents,

v.John R. ASHCROFT, Secretary of State of Missouri, Respondent,Mike Louis, Respondent-Appellant.

WD 80613 Consolidated with WD 80614

WD 80615

WD 80616

WD 80617

WD 80618

WD 80619

WD 80620

WD 80621

WD 80622

WD 80623

WD 80627

WD 80631

WD 80632

WD 80633

WD 80634

WD 80635

WD 80636

WD 80637

WD 80638

WD 80639

WD 80641.

Missouri Court of Appeals, Western District.

OPINION FILED: June 27, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2017

Motion for Transfer to Supreme Court Denied October 5, 2017

W. James Young, and Robert Ryan Harding, Springfield, MO, for appellant-respondents Hill, Stickler and Briggs.

Edward D. Greim, Kansas City, MO, for appellant-respondent Evans.

Michael Martinich-Sauter, and Jason Krol Lewis, co-counsel, Jefferson City, MO, for respondent Ashcroft.

Jeremy A. Root, Jefferson City, MO, for respondent-appellant Louis.

Before Special Division: Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

This appeal raised issues regarding the summary statements of ten ballot initiative petitions filed with the Missouri Secretary of State ("Secretary of State"). The initiatives all seek to amend the Missouri Constitution to modify the collective bargaining rights between employees and employers. Mary Hill, Michael J. Briggs, and Roger Bruce Stickler (collectively, the "Hill Plaintiffs"), along with John Paul Evans ("Plaintiff Evans") (collectively, "Plaintiffs") brought suit in the Circuit Court of Cole County, Missouri, claiming that the ten ballot summaries drafted for the initiatives were unfair or inadequate pursuant to section 116.190.¹ The court agreed and certified new ballot summaries for each initiative petition. Plaintiffs appeal collectively challenging the circuit court's finding that the proposed ballot summaries were sufficient and fair at the time they were drafted. Additionally, Plaintiff Evans raises two points on appeal challenging the procedure by which the Secretary of State collected public comments regarding the proposed ballot summaries. Mike Louis ("Louis"), the proponent of the ten initiative petitions, cross-appeals from the same judgments raising three points on appeal alleging the trial court erred in redrafting the proposed ballot summaries which were originally drafted by the Secretary of State. The Secretary of State responds to the Plaintiffs' appeal but does not join in Louis's cross-appeal. We affirm in part, reverse in part, and we certify the original summary statements as drafted by the Secretary of State (collectively, the "Summary Statements"), with the exception of two Summary Statements that shall be certified as amended by this opinion.

Factual Background

On December 9, 2016, Louis submitted eight initiative petition sample sheets² —a proposed initiative petition in the form it will be circulated to collect signatures before being placed on the ballot—to the Secretary of State.³ Three days later, Louis submitted two additional initiative petition sample sheets⁴ (collectively, the "Initiative Petitions"). While the ten Initiative Petitions differ in minor ways, there are five sets of two nearly identical Initiative Petitions⁵ and all would amend Article I of the Missouri Constitution to, in effect, prohibit the enactment of laws limiting employee unions and employers from collective bargaining over the conditions of employment. The language of each Initiative Petition is set out in its entirety and discussed below.

On December 22, 2016, then Missouri Attorney General Chris Koster ("Attorney General Koster") approved the form of Initiative Petitions 2018-092 through 2018-099, and on December 23, 2016, Attorney General Koster approved the form of Initiative Petitions 2018-101 and 2018-102.

On December 28, 2016, Secretary Kander transmitted Summary Statements for each of the Initiative Petitions to Attorney General Koster. Attorney General Koster approved each Summary Statement, pursuant to section 116.160. On the morning of January 9, 2017, just prior to leaving office, Secretary Kander approved the official ballot title⁶ for each Initiative Petition.

On January 19, 2017, Plaintiffs brought eleven separate lawsuits relating to the Initiative Petitions. The Hill Plaintiffs alleged that each of the Summary Statements was unfair and insufficient under section 116.190. Plaintiff Evans raised the same challenges but, in addition, claimed that Secretary Kander had failed to comply with the public comment procedure established by section 116.334.1, and that, as a result, the Summary Statements were invalid (collectively, the "Lawsuits"). Plaintiff Evans sought declarations that the Summary Statements were unfair or insufficient and sought declaratory relief to reopen the public comment period. The Lawsuits were consolidated before the trial court for hearing.

While the underlying Lawsuits were pending, the Missouri General Assembly passed Senate Bill 19 ("SB19"). SB19 was passed by the Legislature on February 2, 2017, signed by Missouri Governor Eric Greitens ("Governor Greitens") on February 6, 2017, and will become effective August 28, 2017.⁷ With certain exceptions, SB19 generally bars any requirement that employees, as a condition of employment, become, remain, or refrain from becoming a member of a labor union or pay dues or other charges to a labor union.

The parties filed cross-motions for judgment on the pleadings. The circuit court conducted a hearing and argument on the Lawsuits on March 2, 2017. The circuit court entered two judgments on March 23, 2017. As to the Lawsuits brought by the Hill Plaintiffs, the circuit court found in favor of the Hill Plaintiffs on all counts ("Hill Judgment"). Specifically, the court found that although the Summary Statements may have been fair and sufficient at the time they were drafted, the subsequent passage of SB19 rendered them unfair and insufficient. The trial court redrafted the Summary Statements and certified new language (collectively, "Amended Summary Statements"). As to Plaintiff Evans's Lawsuit, the circuit court similarly held the Summary Statements unfair or insufficient and ordered the Amended Summary Statements to be entered. But, as to Evans's other two counts alleging failure of the Secretary of State to comply with section 116.334.1 in regard to the public comment period, the court found in favor of the Secretary of State and Louis ("Evans Judgment").

Standard of Review

"De novo review of the trial court's legal conclusions about the propriety of the secretary of state's summary statement ... is the appropriate standard of review when there is no underlying factual dispute that would require deference to the trial court's factual findings." Brown v. Carnahan , 370 S.W.3d 637, 653 (Mo. banc 2012) ; Billington v. Carnahan , 380 S.W.3d 586, 591 (Mo. App. W.D. 2012) (de novo review where parties filed stipulated facts).

"To avoid encroachment on the people's constitutional authority, courts will not sit in judgment on the wisdom or folly of the initiative proposal presented [....]" Brown, 370 S.W.3d at 645. "When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course." Missourians to Protect the Initiative Process v. Blunt , 799 S.W.2d 824, 827 (Mo. banc 1990).

The parties entered into stipulated facts which are not in dispute.

Analysis

The Secretary of State is responsible for drafting the official summary statements for constitutional amendments proposed by initiative petitions. Section 116.190.1. Missouri citizens are authorized to seek judicial review of the official ballot title if the citizen believes the summary statement portion of the ballot title is "insufficient or unfair." Section 116.190.3.

General Principles Regarding Summary Statements

The summary materials provided in the ballot title are intended to provide voters with enough information that they are made aware of the subject and purpose of the initiative and allow the voter to make an informed decision as to whether to investigate the initiative further. See Protect Consumers' Access to Quality Home Care Coal., LLC v. Kander , 488 S.W.3d 665, 671 (Mo. App. W.D. 2015). "It is incumbent upon the Secretary in the initiative process to promote an informed decision of the probable effect of the proposed amendment." Cures Without Cloning v. Pund , 259 S.W.3d 76, 82 (Mo. App. W.D. 2008). A summary statement is not intended to, nor often can it, give voters detailed information about the proposed measure. Mo. Mun. League v. Carnahan, 364 S.W.3d 548, 553 (Mo. App. W.D. 2011) ("[a]ll that is required is that the language fairly summarizes the proposal in a way that is impartial and does not deceive or mislead voters."). It is the responsibility of each voter to educate himself or herself about the proposed measure, and it is the role of those supporting or opposing the measure to articulate their views of its impact through the political process. Precedent indicates that the use of broad, over-inclusive language is acceptable and does not run contrary to the requirements that the summary be "a concise statement ... using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." Section 116.334.1. Such precedent is not surprising since the Secretary of State is often tasked with drafting summary statements for measures that include multiple and/or complex provisions. A summary statement that is broad enough to put voters on notice of the important aspects of such a measure may be broad so as to encompass matters not included in the measure so long as it is not deceptive, misleading, or argumentative. The question presented by this case is whether a broad summary statement is insufficient or unfair...