Missouri Protection and Advocacy v. Carnahan

• Decision Date: 23 August 2007
• Docket Number: No. 06-3014.,06-3014.
• Citation: 499 F.3d 803
• Parties: MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., et al., Plaintiffs-Appellants, v. Robin CARNAHAN, in her official capacity as Secretary of State of the State of Missouri; Jeremiah Nixon, in his official capacity as Attorney General of the State of Missouri, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.3d 803

MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., et al., Plaintiffs-Appellants, v. Robin CARNAHAN, in her official capacity as Secretary of State of the State of Missouri; Jeremiah Nixon, in his official capacity as Attorney General of the State of Missouri, Defendants-Appellees.

No. 06-3014.

United States Court of Appeals, Eighth Circuit.

Submitted February 12, 2007.

Filed: August 23, 2007.

Rehearing and Rehearing En Banc Denied October 18, 2007.^*

Samuel R. Bagenstos, argued, St. Louis, MO (James M. Kirkland, Kansas City, MO; Anthony E. Rothert, St. Louis, MO; Neil Bradley, Atlanta, GA; James G. Felakos, New York, NY; Barrett J. Vahle, Kansas City, MO; Ira Burnim, Jennifer Mathis and Alison N. Barkoff, Washington, DC; and Michael H. Finkelstein and David Hale, Jefferson City, MO, on the brief), for appellant.

Michael Eugene Cook Pritchett, argued, Assistant Attorney General, Jefferson City, MO.

Before LOKEN, Chief Judge, O'CONNOR, Associate Justice (Ret.),^* and GRUENDER, Circuit Judge.

LOKEN, Chief Judge.

This is a lawsuit by three Missouri residents and a non-profit advocacy organization, Missouri Protection and Advocacy Services, Inc. (MOPAS), who allege that Missouri law violates the Equal Protection Clause; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165; and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 by disqualifying persons under court-ordered guardianship from voting. Plaintiffs seek injunctive and declaratory relief. Defendants are the Missouri Secretary of State, Robin Carnahan, and the Missouri Attorney General, Jeremiah Nixon, who are sued only in their official capacities. The claims of two individual plaintiffs were dismissed without prejudice at their request. The district court¹ denied MOPAS and the third individual, Bob Scaletty, relief on the merits after rejecting defendants' threshold arguments that the case is moot, that plaintiffs lack standing, and that these State officers are not proper defendants. MOPAS and Scaletty appeal. We affirm though on somewhat different grounds.

I. The Missouri Laws at Issue

Article VIII, § 2, of the Missouri Constitution, as amended in 1958, broadly grants the right to vote to "[a]ll citizens of the United States . . . over the age of eighteen who are residents of this state" but then provides that "no person who has a guardian . . . by reason of mental incapacity, appointed by a court of competent jurisdiction . . . shall be entitled to vote." This prohibition has a long history.² The Missouri Constitution of 1875 barred from voting persons kept at poorhouses and other asylums at public expense. Art. 8, § 2. The Constitution of 1945 provided that "no idiot, no insane person and no person while kept in any poorhouse at public expense . . . shall be entitled to vote." Art. VIII, § 2. The 1958 amendment tying the prohibition to court-ordered guardianship was intended "to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition." New v. Corrough, 370 S.W.2d 323, 327 (Mo.1963).

The Missouri election laws implement Article VIII, § 2, by providing, "No person who is adjudged incapacitated shall be entitled to register or vote." Mo. Rev.Stat. § 115.133.2. The parties in this case do not argue that § 115.133.2 disqualifies more adults from voting than the prohibition set forth in Article VIII, § 2. Such a contention would conflict with well-established principles — that Missouri's election laws "must be liberally construed in aid of the right of suffrage," Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, 631 (Mo.banc 1913); that the right of citizens who possess the enumerated constitutional qualifications to vote "may be regulated by statute although not lightly denied or abrogated," State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 88 (Mo.banc 1974); and that "voting rights are an area where our state constitution provides greater protection than its federal counterpart," Weinschenk v. State of Missouri, 203 S.W.3d 201, 212 (Mo. banc 2006). Thus, while no Missouri appellate court has addressed the question, we are confident that the Supreme Court of Missouri would construe the term "adjudged incapacitated" in § 115.133.2 as having the same meaning as the term "has a guardian [appointed] by reason of mental incapacity" in Article VIII, § 2.

The Missouri Probate Code authorizes the appropriate probate court³ to appoint a qualified guardian for an adult if a hearing has established "by clear and convincing evidence that the person for whom a guardian is sought is incapacitated as defined in this law." Mo. Rev. Stat § 475.079.1. An "incapacitated person" is defined as:

one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. Mo.Rev.Stat. § 475.010(9).

The Probate Code defines a "partially incapacitated person" as one who "lacks capacity to meet, in part," these essential requirements. § 475.010(14) (emphasis added). The distinction is significant. An adjudication of partial incapacity imposes only those legal disabilities "specified in the order of adjudication," § 475.078.1, whereas an adjudication of full incapacity imposes "all legal disabilities provided by law, except to the extent specified in the order of adjudication," § 475.078.2.⁴ In either case, the probate court must apply a "least restrictive environment" principle, imposing "only such restraint as is necessary to prevent [the ward] from injuring himself and others and to provide him with such care, habilitation and treatment as are appropriate for him considering his physical and mental condition and financial means." § 475.010(10); see § 475.075.10. If the court finds the person partially incapacitated, it "shall appoint a limited guardian" and "shall impose only such legal disabilities and restraints on personal liberty as are necessary to promote and protect the well-being of the individual." § 475.080.1.

II. An Eleventh Amendment Issue

At the outset, defendants argue that the Missouri Secretary of State and Attorney General have no real connection with the enforcement of Missouri's laws regarding the loss of voting rights by persons under guardianship and therefore this suit is barred by the Eleventh Amendment. Like the district court, we disagree.

A State's Eleventh Amendment immunity "does not bar a suit against a state official to enjoin enforcement of an allegedly unconstitutional statute, provided that such officer [has] some connection with the enforcement of the act." Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir.2005) (quotation omitted). Though broad authority to register voters and to administer voting and elections is delegated to local "election authorities" —the county clerk or the local board of election commissioners—the Secretary of State is "the chief state election official responsible for overseeing of the voter registration process." See Mo.Rev.Stat. §§ 115.015, 115.141, 115.023.1, 115.155, 115.160.3. Moreover, § 115.195.3 obligates the Secretary of State to send local election authorities the names of persons who are adjudged incapacitated. As we will explain, Bob Scaletty was prevented from voting in the 2004 election by an error that may well have stemmed from his inclusion on a list of persons under guardianship that did not note the preservation of his right to vote. Finally, Missouri statutes appoint the Secretary of State as the "chief state election official" to administer the federal Help America Vote Act of 2002 and the National Voter Registration Act of 1993. See Mo.Rev.Stat. § 28.035, § 115.136.

The Attorney General has statutory authority to represent the state in both criminal and civil cases. See Mo.Rev.Stat. § 56.060.1; § 27.030; § 27.060. Persons who knowingly attempt to vote when they are ineligible—which presumably would include persons under guardianship due to mental incapacity—can be prosecuted for committing a class one election offense. See Mo.Rev.Stat. § 115.631(2).

The summary judgment record reflects considerable uncertainty, inconsistency, and apparent confusion among local guardians and election officials concerning the proper interpretation of the Missouri laws at issue. In these circumstances, we conclude that the Secretary of State and the Attorney General were potentially proper parties defendant for the injunctive relief sought had plaintiffs prevailed on the merits.

Accordingly, the Ex parte Young exception to Eleventh Amendment immunity applies. See Reprod. Health Servs., 428 F.3d at 1145.

III. Equal Protection Claims

In the last fifty years, the Supreme Court has considered many cases involving various aspects of the right to vote. "[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). The Court's concern with these difficult issues is understandable, though the resulting array of opinions deciding disparate voting issues can be difficult to apply in a new context.

This case concerns a State's eligibility requirement for voting. Historically, deciding who is qualified to vote has been a relatively unfettered prerogative of the sovereign States. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9, 102 S.Ct. 2194, 72 L.Ed.2d 628 (1982) ("the right to vote, per se, is not a constitutionally protected right"). "The States have long been held to have broad powers to...