Mo. Mun. League v. Carnahan

• Citation: 364 S.W.3d 548
• Decision Date: 04 October 2011
• Docket Number: No. WD 73911.,WD 73911.
• Parties: MISSOURI MUNICIPAL LEAGUE, et al., Appellants, v. Robin CARNAHAN, et al., Respondents.
• Court: Court of Appeal of Missouri (US)

364 S.W.3d 548

MISSOURI MUNICIPAL LEAGUE, et al., Appellants,

v.Robin CARNAHAN, et al., Respondents.

No. WD 73911.

Missouri Court of Appeals, Western District.

Sept. 6, 2011.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 4, 2011.

Application for Transfer Denied Dec. 20, 2011.

Robert L. Hess II and R. Ryan Harding, Jefferson City, MO, for appellants.

Jeremiah Morgan and Kevin R. Hall, Jefferson City, MO, for respondent Robin Carnahan.

Darrell L. Moore, Jefferson City, MO, for respondent Thomas A. Schweich.

Ronald J. Calzone, Respondent Pro Se.

Before Division Two: THOMAS H. NEWTON, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

This appeal concerns the summary statements, fiscal note summaries, and fiscal notes of three ballot initiative petitions filed with the Missouri Secretary of State. Plaintiffs appeal the Judgment and Order of the trial court certifying the Official Ballot Titles, including the summary statements and fiscal note summaries, and denying plaintiffs' claims with respect to the fiscal notes. We affirm.¹

Factual Background

Rob Calzone (“Calzone”) submitted three initiative petitions to the Missouri Secretary of State (“Secretary”). Two of the petitions propose amendments to Article I, Sections Twenty–Six, Twenty–Seven, and Twenty–Eight of the Missouri Constitution, which concern eminent domain and the taking of private property (collectively “the Article I Petitions”).² The third initiative petition proposes an amendment to Article VI, Section Twenty–One of the Missouri Constitution, which concerns local governments' power to reclaim blighted areas (“the Article VI Petition”).

The Summary Statements for the Article I Petitions prepared by the Secretary of State provides the following:

Shall the Missouri Constitution be amended to restrict the use of eminent domain by:

• Allowing only government entities to use eminent domain;

• Prohibiting its use for private purposes, with certain exceptions for utilities;

• Requiring that any taking of property be necessary for a public use while continuing to provide just compensation;

• Requiring that the intended public use be declared at the time of the taking;

• Permitting the original owners to repurchase the property if it is not so used within five years or if the property is offered to a private entity within twenty years?

The State Auditor's office followed its normal process for preparing the fiscal notes and fiscal note summaries for the Article I Petitions, which included soliciting comments from state and local governmentalagencies. The fiscal note summaries of the Article I Petitions, prepared by the State Auditor, state: “The total cost or savings to state or local governmental entities is unknown. Most state governmental entities estimate no costs, however; one state governmental entity reported potential unknown costs. Estimated costs, if any, to local governmental entities could be significant.”

The Summary Statement for the Article VI Petition prepared by the Secretary of State provides the following:

Shall the Missouri Constitution be amended to change the power of the General Assembly and constitutionally chartered cities or counties to:

• Prohibit the use of eminent domain to acquire and resell property found to be blighted, substandard or unsanitary for the purpose of clearance, redevelopment or rehabilitation; and

• Allow them to require owners of property found to be a public nuisance to abate or clean up the nuisance and, if the property owner fails to do so in a reasonable time, allow the local government to pay for the abatement and impose a lien to recover the cost?

Again, the State Auditor's office followed its normal procedures to prepare the fiscal note and fiscal note summary for the Article VI Petition. The fiscal note summary prepared by the Auditor's office for the Article VI Petition states: “The total cost or savings to state or local governmental entities is unknown. Most state governmental entities estimate no costs, however, one state governmental entity reported potential unknown costs. Estimated costs, if any, to local governmental entities will vary, but could be significant.”

Plaintiff Missouri Municipal League (“MML”) is a not-for-profit association of approximately six-hundred and sixty-seven cities, towns, and villages in the State of Missouri. MML was joined by a number of other plaintiffs in this challenge to the summary statements, fiscal notes, and fiscal note summaries for the Article I and Article VI Petitions (collectively “Plaintiffs”). ³ Plaintiffs filed suit in the Circuit Court of Cole County where they undertook an expedited schedule of discovery and briefing. The parties entered into a Joint Stipulation as to the evidence with Joint Exhibits and the circuit court heard oral arguments on April 20, 2011. The Circuit Court entered its Order and Judgment in favor of Calzone and the State Auditor, and, therefore, found no error in the summary statements, fiscal notes, fiscal summaries, or processes by which they were prepared. Plaintiffs now appeal.

Standard of Review

As in any court-tried matter, we will sustain the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When reviewing the arguments related to the process followed by the Auditor's office in preparing the fiscal notes, the facts are not in dispute. In those instances, the circuit court's legal conclusions and application of the law to the facts are reviewed without deference to the circuit court's conclusions. Coyle v. Dir. of Revenue, 181 S.W.3d 62, 64 (Mo. banc 2005).⁴ Similarly, the parties argued the fairness and sufficiency of the Secretary's summary statements based on stipulated facts, joint exhibits, and undisputed facts. Thus, the only question on appeal is whether the trial court drew the proper legal conclusions, which we review de novo. Overfelt v. McCaskill, 81 S.W.3d 732, 735 (Mo.App.2002).

Missouri Municipal League v. Carnahan, 303 S.W.3d 573, 579–80 (Mo.App. W.D.2010) (“MML I ”).

Analysis

In Point One, Plaintiffs argue the circuit court erred in upholding the summary statement for the Article I Petitions, because the reference to “just compensation” in the summary statement is unfair and insufficient in violation of section 116.190 ⁵ and will prejudice the public in favor of the proposal in that the summary statement does not describe a change that would be made to the Missouri Constitution but instead restates an existing constitutional principle that would not be changed.

Plaintiffs argue that the reference to “just compensation” in the summary statement for Article I is misleading and prejudices the public in favor of voting for the proposal. The exact language of the disputed portion of the summary statement is as follows: “Requiring that any taking of property be necessary for a public use while continuing to provide just compensation.” (Emphasis added.)

The statute that governs the promulgation of summary statements for petitions states:

If the petition form is approved, the secretary of state shall within ten days prepare and transmit to the attorney general a summary statement of the measure which shall be a concise statement not exceeding one hundred words. This statement shall be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure. The attorney general shall within ten days approve the legal content and form of the proposed statement.

Section 116.334.1.

Citizens may challenge proposed summary statements if they are insufficient or unfair. Section 116.190.3; United Gamefowl Breeders Assn. v. Nixon, 19 S.W.3d 137, 140 (Mo. banc 2000).

Insufficient means “inadequate; especially lacking adequate power, capacity, or competence.” The word “unfair” means to be “marked by injustice, partiality, or deception.” Thus, the words “insufficient [or] unfair” ... mean to inadequately [or] with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].⁶

Cures Without Cloning v. Pund, 259 S.W.3d 76, 81 (Mo.App. W.D.2008) (quoting Hancock v. Sec'y of State, 885 S.W.2d 42, 49 (Mo.App.1994) (internal citations omitted)). “The critical test is ‘whether the language fairly and impartially summarizes the purposes of the measure so that voters will not be deceived or misled.’ ” Id. (quoting Bergman v. Mills, 988 S.W.2d 84, 92 (Mo.App. W.D.1999)).

In MML I, this court considered a challenge to a substantially similar ballot initiative. In that case we considered the following language in the summary statement: “Requiring that any taking of property be necessary for public use and that landowners receive just compensation.” Id. at 586. There, we excised the portion of that statement referring to “just compensation” because “the Missouri Constitution has historically and does currently require just compensation for takings.” Id. at 588. The redundancy in the statement was unnecessary and potentially prejudicial in that it suggested a change was being made to the Constitution regarding “just compensation” that was not being amended. Plaintiffs analogize that case to the case at bar. However, such an analogy is improper.

Unlike the language in MML I, the language before us does not suggest a change is being made to the current Missouri Constitution with respect to “just compensation.” The challenged statement clearly states: “ while continuing to provide just compensation.” (Emphasis added.) The statement makes clear that the Missouri Constitution currently provides for “just compensation” when a public taking occurs; and the suggested change is that any taking of property must be necessary for a public use.

The mere fact that a proposal references something currently in the...