Knight v. Carnahan

• Decision Date: 10 February 2009
• Docket Number: No. WD 70257.,WD 70257.
• Citation: 282 S.W.3d 9
• Parties: David KNIGHT and Ray Salva, Appellants, v. Robin CARNAHAN, in her official capacity as Secretary of State of Missouri; Susan Montee, in her official capacity as Missouri State Auditor; and Everett Bake, Respondents.
• Court: Missouri Court of Appeals

282 S.W.3d 9

David KNIGHT and Ray Salva, Appellants, v. Robin CARNAHAN, in her official capacity as Secretary of State of Missouri; Susan Montee, in her official capacity as Missouri State Auditor; and Everett Bake, Respondents.

No. WD 70257.

Missouri Court of Appeals, Western District.

February 10, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 31, 2009.

Application for Transfer Denied May 26, 2009.

Charles R. Buckley, Deborah J. Blakely, Independence, Donald L. Dickerson, Cape Girardeau, MO, for Appellants.

Charles W. Hatfield, Khristine A. Heisinger, Jefferson City, MO, for Respondent, Bake.

Daniel Y. Hall, Jefferson City, MO, for Respondents, Carnahan and Montee.

Before: THOMAS H. NEWTON, C.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

THOMAS H. NEWTON, Chief Judge.

David Knight and Ray Salva (hereinafter Appellants), acting as Missouri residents, voters, and taxpayers, appeal the trial court's dismissal of their challenge to the Secretary of State's certification of a statewide ballot measure. During the pendency of this appeal, Missouri voters passed the ballot measure, thereby enacting it as Missouri law. Although the measure's passage raises questions of our jurisdiction, a thorough analysis shows the propriety of this court's review. We affirm.

Factual and Procedural Background

In January of 2008, an initiative petition¹ was submitted by its proponents to the Missouri Secretary of State. The initiative petition proposed amendments to sections 160.534, 163.011, 313.805, 313.817, and 313.822 of the Missouri Revised Statutes. Pursuant to statutory procedure, the Secretary of State sent the sample sheet and a summary statement she prepared to the Missouri Attorney General for review. The Missouri State Auditor prepared a fiscal note and summary and submitted them to the Attorney General for review. The Attorney General approved all three items. Subsequently, on February 27, 2008, the Secretary of State certified the official ballot title,² which includes the summary and fiscal note summary. The initiative petition was circulated with the official ballot title, which read as follows:

Shall Missouri law be amended to:

— repeal the current individual maximum loss limit for gambling;

— prohibit any future loss limits;

— require identification to enter the gambling area only if necessary to establish that an individual is at least 21 years old;

— restrict the number of casinos to those already built or being built;

— increase the casino gambling tax from 20% to 21%;

— create a new specific education fund from gambling tax proceeds generated as a result of this measure called the "Schools First Elementary and Secondary Education Improvement Fund"; and

— require annual audits of this new fund?

State governmental entities will receive an estimated $105.1 to $130.0 million annually for elementary and secondary education, and $5.0 to $7.0 million annually for higher education, early childhood development, veterans, and other programs. Local governmental entities receiving gambling boat tax and fee revenues will receive an estimated $18.1 to $19.0 million annually.

The initiative's proponents gathered and submitted signatures to the Secretary of State. On August 5, 2008, pursuant to section 116.150, the Secretary of State issued a certificate of the sufficiency of the petition to be placed on the November 4, 2008 ballot.

On August 14, 2008, Appellants filed suit against the Secretary of State and State Auditor (hereinafter Respondents).³ Appellants alleged that under section 116.120, the Secretary of State was required to determine whether the initiative petition complied with the Missouri Constitution and the relevant provisions of chapter 116. The initiative petition, they argued, failed to comply with either. Appellants sought: (1) an injunction prohibiting the measure from being placed on the ballot for the November 4, 2008 election; (2) an order requiring reversal of the Secretary's certification of the sufficiency of the petition; and (3) a declaratory judgment that the proposed measure was "legally insufficient and ineffective." After a hearing on October 15, the trial court dismissed some counts of the petition and ruled against Appellants on the merits of others. Appellants sought relief in this court and subsequently filed a motion for transfer to the Missouri Supreme Court. On October 27, 2008, we denied Appellants' motion for transfer. We take judicial notice of the Secretary of State's certification of the November 4, 2008 general election results showing that Missouri voters passed the ballot measure as Proposition A.

Standard of Review

Because this case was submitted on stipulated facts, our standard of review is set forth in Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979). Overfelt v. McCaskill, 81 S.W.3d 732, 735 (Mo.App. W.D.2002). The only question before us is whether the trial court made the proper legal conclusions from the stipulated facts. Id.

We attempt to harmonize all of an initiative petition's provisions with the constitution. Comm. for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503, 510 (Mo. banc 2006). When assessing whether a petition violates implementing statutes, we look only for substantial compliance. Id. at 512. Additionally, where the people have demonstrated their will through their vote, our duty is to seek to uphold that decision. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 (Mo. banc 1981).

Legal Analysis

Appellants assert four claims of error in the trial court's dismissal of their suit; two framed by the Missouri Constitution and two founded in the Missouri Revised Statutes. We first address their claims of Proposition A's lack of compliance with Missouri law, and second address their claim of error in the trial court's dismissal of their remaining constitutional claims as premature before the election.

Before addressing the merits, we must determine sua sponte whether we have jurisdiction. Moses v. Carnahan, 186 S.W.3d 889, 896 (Mo.App. W.D.2006). Relying on Cole v. Carnahan, Respondents urge us to find many of Appellants' claims moot by virtue of the election. See No. 272 S.W.3d 392, 394-95 (Mo.App. W.D. 2008). A claim is moot when the judgment sought would have no practical effect in a controversy. Asher v. Carnahan, 268 S.W.3d 427, 429-30 (Mo.App. W.D.2008).

In Cole, this court dismissed as moot a challenge to a trial court's refusal to certify new ballot summaries because the statutory deadline for a court to order changes to the ballot had passed. 272 S.W.3d at 394-95. On appeal, Mr. Cole also requested a declaration that the measure was void if the voters ultimately passed it. Id. at 393-94. This court rejected Mr. Cole's request because his petition to the trial court had sought relief under section 116.190, which did not authorize remedies other than the certification of a corrected ballot title, and because we may not grant relief on appeal not sought in the trial court. Id. at 393-95. Accordingly, Cole left open the question of what remedies might be available post-election based on an invalid ballot summary, choosing not to "address whether Mr. Cole may have any other remedies available post election." Id. at 395 n. 1. Judge Holliger also wrote separately to state his belief that "it is an open question as to whether a successful proposition at an election can be challenged post-election because of an improper ballot summary." Id. at 396.

Consequently, Cole's finding of mootness was specific to the pre-election remedy sought by Mr. Cole. In the present case, Appellants sought both injunctive and declaratory relief from the circuit court under a variety of claims. We agree that the injunctive relief sought by Appellants is no longer available because the election has passed, and the request is, therefore, moot. However, Appellants also sought declaratory relief as to the invalidity of the petition submitted to the voters on claims that, under our case law, may be subject to a limited post-election review where the proposal has been passed by the voters.⁴

Some precedent holds that procedural defects—at least technical ones—in a measure's enactment may be cured by its subsequent passage. See Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 165 (1956). Our supreme court has since held that constitutional single-subject requirements "apply to initiative propositions both before and after approval by the voters." United Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000). In Gamefowl, the Missouri Supreme Court reviewed a post-election claim seeking to invalidate a statutory measure adopted by Missouri voters based on claims that the initiative petition had violated article III, section 50's single-subject requirement. Id.

The Missouri Supreme Court has also reviewed post-election claims of violations of the implementing statutes, despite an initiative's passage by the voters. See Buchanan, 615 S.W.2d at 12. In Buchanan, the court reviewed post-election allegations of constitutional and statutory defects in the initiative process enacting a constitutional amendment where those challenges were filed prior to the election. Id. at 9. The court's concern was whether procedural safeguards had been followed in getting the measure to the voters. Id. at 11-12. The safeguards, it explained, were designed to promote voters' informed understanding of the measure's effects or to prevent a "self-serving faction from imposing its will upon the people without their full realization of the effects." Id. at 11. In its opinion, the court considered whether the petition would have been justifiably enjoined, whether there was a basis for invalidating the election, and whether the provision was validly adopted. Id. at 9.

Consequently, the question of whether the constitutional and statutory requirements for a validly enacted law were followed in this case may be considered post-election. App...