Missourians to Protect the Initiative Process v. Blunt

Decision Date29 October 1990
Docket NumberNo. 73148,73148
Citation799 S.W.2d 824
PartiesMISSOURIANS TO PROTECT THE INITIATIVE PROCESS, a Not-For-Profit Corporation of Missouri, et al., Plaintiffs-Respondents, v. Roy D. BLUNT, in his capacity as Secretary of State of the State of Missouri, Defendant-Appellant, and Yes For Ethics Committee, Intervenor-Appellant.
CourtMissouri Supreme Court

William L. Webster, Atty. Gen., James B. Deutsch, Simon B. Buckner, Asst. Attys. Gen., Jefferson City, for defendant-appellant.

John E. Bardgett, Mark H. Levison, Clayton, for plaintiffs-respondents.

Martin M. Green, H. Todd Iverson, Clayton, for amicus curiae League of Women Voters.

Alex Bartlett, Harvey M. Tettlebaum, Jefferson City, for intervenor-appellant.

PER CURIAM.

This is an appeal from an injunction prohibiting the appellant Secretary of State from placing proposed constitutional amendment "No. 5" on the November 6, 1990, ballot. The appeal was initially filed in this Court but, due to a lack of jurisdiction, 1 the cause was transferred to the Missouri Court of Appeals, Western District. Because questions of statewide concern were involved, this Court granted transfer before opinion. Rule 83.06, Mo.Const. art. V, § 10. The circuit court judgment is affirmed.

I.

On May 9, 1990, the "Yes for Ethics Committee" submitted to the Secretary of State a proposed initiative petition to amend the state's constitution. The petition, if adopted, would repeal §§ 2, 9, 16, 20, 20(a), 21, 22, 23 and 25 of article III, would adopt nine new sections in lieu thereof, and would adopt three new sections, 54, 55 and 56 of article III. The Secretary delivered the proposal to the Attorney General. Both officials "review[ed] the petition for sufficiency as to form" and approved it. § 116.332.1. 2 The Secretary of State also drafted a proposed ballot title and transmitted it to the Attorney General. The Attorney General approved and returned the ballot title to the Secretary of State on May 11, 1990. § 116.334.2. On September 1, 1990, the Secretary of State certified that a sufficient number of voters had signed the petitions to require that the initiative proposal be placed on the ballot at the November 1990 general election. § 116.150.1.

On September 5, 1990, plaintiffs filed an action in the circuit court of Cole County. Among other relief, they sought to enjoin the Secretary of State from placing the initiative proposal on the November ballot. The "Yes for Ethics Committee" intervened.

The trial court entered judgment on October 11, 1990, enjoining the Secretary of State from placing the measure on the ballot. The judgment was based on several grounds. Among the trial court's conclusions, it determined that the initiative petition proposal does not comply with the provisions of article III, § 50, requiring that petitions for constitutional amendments contain no "more than one subject and matters properly connected therewith." The appeal has been expedited.

II.

Before reaching the issues presented in this appeal, it is important to make some general observations regarding the initiative process provided by the constitution. Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from whom all constitutional authority is derived, have reserved the "power to propose and enact or reject laws and amendments to the Constitution." Mo.Const. art. III, § 49. 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. Constitutional and statutory provisions relative to initiative are liberally construed to make effective the people's reservation of that power. State ex rel. Blackwell v. Travers, 600 S.W.2d 110, 113 (Mo.App.1980). Statutes that place impediments on the initiative power that are inconsistent with the reservation found in the language of the constitution will be declared unconstitutional.

The people, speaking with equal vigor through the same constitution, have placed limitations on the initiative power. That those limitations are mandatory is clear and explicit.

This constitution may be revised and amended only as therein provided.

Article XII, § 1 (emphasis added). Among other prerequisites found in the constitution, the initiative petition must (1) be signed by 8% of the voters in each of two-thirds of the congressional districts in the state, (2) be filed with the Secretary of State no less than four months before an election, (3) contain a proper enacting clause, and (4) contain no more than one amended and revised constitutional article, or one new article which contains not more than one subject and matters properly connected therewith. Mo.Const. art. III, § 50. The constitution has created two competing and contradictory concepts: the inherent right of the people to alter the constitution, and the need for stable, permanent, organic law. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 11 (Mo. banc 1981). Neither concept may be ignored to advance the other, but the two must be balanced.

Courts are understandably reluctant to become involved in pre-election debates over initiative proposals. Courts do not sit in judgment on the wisdom or folly of proposals. Neither will courts give advisory opinions as to whether a particular proposal would, if adopted, violate some superseding fundamental law, such as the United States Constitution. State ex rel. Dahl v. Lange, 661 S.W.2d 7, 8 (Mo. banc 1983); State ex rel. Cramer v. Brown, 7 Ohio St.3d 5, 454 N.E.2d 1321, 1322 (1983). Our single function is to ask whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded. Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (banc 1896).

III.

The pivotal question here is whether this proposed constitutional amendment violates the requirement that an initiative petition contain no more than one subject and matters connected therewith.

Appellants argue that the trial court had no jurisdiction prior to the election to reach the merits of the claim that the initiative petition contains more than one subject. There is authority suggesting, but not holding, that substantive defects in initiative proposals may only be raised after the election, and that a claim of multiple subjects is substantive. State v. Burns, 351 Mo. 163, 172 S.W.2d 259, 266 (1943); Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 662 (banc 1942). The rule alluded to in those cases was not based on any language in the constitution or statutes relative to initiative petitions. The principle arises out of general policies relating to judicial restraint and economy of judicial resources. Appellants rely on various statements in the cases saying that courts will not render an advisory opinion as to whether a proposal would be constitutional if adopted, Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984), or that the initiative process, being akin to the legislative process, should not be interrupted until the legislative labor is complete, Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055, 1057 (banc 1916). Neither of those cases nor others cited by appellants hold that the courts of this state lack authority to conduct a pre-election examination of an initiative petition to determine whether it complies with the provisions of article III, § 50.

There are equally compelling reasons to grant pre-election review. The cost and energy expended relating to elections, and the public confusion generated by avoiding a speedy resolution of a question militate in favor of a limited pre-election review. There are also several cases in which courts have conducted a pre-election review to determine if conditions precedent to placing a proposal on the ballot have been met. See Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657 (banc 1942); State ex rel. Stokes v. Roach, 190 S.W. 277 (Mo. banc 1916); Yes to Stop Callaway Committee v. Kirkpatrick, 685 S.W.2d 209 (Mo.App.1984). In Moore, this Court actually struck an issue from the ballot because of defects similar to those asserted here. In Buchanan, 615 S.W.2d at 12-13, the Court said:

Mo.Const. art. III provides the safeguard against petitions containing "more than one subject and matters properly connected therewith." (Emphasis added.) Section 126.081 [RSMo 1978, now repealed] ... authorizes anyone "dissatisfied" with the [ballot] title to resort to the courts. Either of these matters is reviewable by the courts prior to election.

The claim that no initiative proposition has been or can be struck from the ballot prior to election because it submits issues in a manner prohibited by the constitution is unsupported by the cases.

Ultimately, the rationales for granting or refusing pre-election judicial review must give way to the plain language and reasonable construction of the constitution and statutory provisions relating to the initiative process. The dichotomy between procedural defects in the initiative process and substantive defects in that process is not found in the language of the constitution or the statutes. Among other prerequisites, article III, § 50 provides, "Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith." Any reasonable construction of the quoted language leads to the inescapable conclusion that regardless of the meritorious substance of a proposition, if the prerequisites of article III, § 50 are not met, the proposal is not to be...

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