Payne v. Kirkpatrick, WD

• Decision Date: 11 December 1984
• Docket Number: No. WD,WD
• Citation: 685 S.W.2d 891
• Parties: John PAYNE, Maxine Payne, Wilbur C. Askew, Pari-Mutuel Revenue For a Better Missouri and Karen Schafer, Respondents-Relators-Plaintiffs, v. Hon. James C. KIRKPATRICK, Secretary of State of the State of Missouri, Appellant-Respondent-Defendant, and Gary D. Collins, Appellant-Intervenor-Respondent-Defendant. 36365.
• Court: Missouri Court of Appeals

Page 891

685 S.W.2d 891

John PAYNE, Maxine Payne, Wilbur C. Askew, Pari-Mutuel

Revenue For a Better Missouri and Karen Schafer, Respondents-Relators-Plaintiffs, v. Hon. James C. KIRKPATRICK, Secretary of State of the State

of Missouri, Appellant-Respondent-Defendant,

and

Gary D. Collins, Appellant-Intervenor-Respondent-Defendant.

No. WD 36365.

Missouri Court of Appeals,

Western District.

Dec. 11, 1984.

As Modified Jan. 29, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Jan. 29, 1985.

Application to Transfer Denied

April 2, 1985.

Edward D. Robertson, Asst. Atty. Gen., Jefferson City, for James C. Kirkpatrick.

William Duane Benton, Jefferson City, for Gary Collins.

George Alex Bartlett, Jefferson City, for John Payne, et al.

Before TURNAGE, C.J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is an action in mandamus seeking to compel the Missouri Secretary of State to place, for popular vote, a proposed constitutional amendment on the ballot for November 6, 1984, which, if approved, would permit and allow pari-mutuel wagering on horse racing. The circuit court, by its judgment in the form of an order, directed the Missouri Secretary of State to in turn direct local election authorities to place the proposal on the ballot for the November 6, 1984 general election. An appeal from that judgment was presented to this court. The judgment is affirmed.

While at the outset there was disagreement, and perhaps some confusion, as to whether this court has jurisdiction of this matter, it is quite clear from a review of Mo.Const.Art. V, § 3 (as amended, 1982) that the subject matter herein is not within the exclusive appellate jurisdiction of the Missouri Supreme Court and therefore jurisdiction is vested in this court. Yes to Stop Callaway Committee, et al. v. Kirkpatrick, 685 S.W.2d 209 (Mo.App.1984).

The facts, other than those directly related to the issues on this appeal, are quite simple and not disputed between the parties. They are, therefore, summarized. As to any other facts, they are specifically considered in the disposition of the charged errors infra.

This matter arose over the presentment of initiative petitions by respondents to the Missouri Secretary of State on July 5, 1984. Following the presentment of the petitions, the Secretary, after forwarding copies of the petitions to local election authorities for the verification of signatures, announced there was an insufficient number of signatures. This announcement was made on September 13, 1984. The Secretary stated that of the 208,060 submitted signatures, 137,840 were verified by local election authorities. The Secretary also announced that the petitions qualified in only four of the seven congressional districts involved. Specifically, the Secretary declared that the Second Congressional District failed to have the requisite number of valid signatures by 3,204, the Third Congressional District failed by 213, and the Seventh Congressional District failed by 843. Later the same day (September 13, 1984), respondents caused to have served upon the Secretary an alternative writ of mandamus and a petition for a writ of mandamus. The circuit court granted the alternative writ of mandamus, which directed the Secretary to either certify the petitions showing a sufficiency as to signatures or to show cause why the petitions were insufficient. On September 25, 1984, an evidentiary hearing was held and appellant-intervenor was allowed to intervene. At the completion of the hearing, the circuit court issued its order pendente lite, directing the Secretary to place the proposal on the November 6, 1984 ballot. The order pendente lite was to remain in effect until October 27, 1984. At the evidentiary hearing, evidence was submitted by stipulation. On September 25, 1984, the circuit court made an entry on its docket sheet stating, "Case Under Advisement." On September 27, 1984 and September 28, 1984, respondents filed pleadings with the circuit court captioned "Redesignation of Petition Sheets." More about this matter is disclosed infra. On October 2, 1984, the circuit court issued its order as noted above. This appeal followed.

In total, appellants (Secretary of State and Intervenor) present ten alleged errors. Since there is some duplication and overlapping of these ten points and for the purpose of the disposition of this appeal, those points have been combined and summarized as follows.

Appellants charge that the trial court erred in (1) declaring that § 116.140, RSMo 1978 requires the Secretary of State to strike all names not counted by election authorities within 30 days of the receipt of the petitions or else all signatures must be counted as valid; (2) declaring that the petitions contained a sufficient number of valid signatures within the Seventh Congressional District, (3) allowing respondents to redesignate the county on certain petition pages because such redesignation subverts § 116.060, RSMo 1978, (4) in counting as valid certain signatures where there existed a variation in the addresses on the petitions as compared with registered voter records, (5) declaring that the initiative petition may be used to authorize pari-mutuel wagering because Article III, § 51 limits such use of initiative petitions; (6) ruling that the petitions were constitutional because they violate Mo.Const.Art. III, § 50, because notice is not given relative to the enactment of a new section, 39(a) and the effect is to repeal the present section 39(a) presently authorizing bingo, and (7) ruling that the proposed amendment is constitutional because it contains more than one subject matter, and proposed amendments to more than one article of the constitution are in violation of Mo.Const.Art. III, § 50 and Art. XII, § 2(b).

It is to be noted from the outset that the decision of this court in affirming the judgment rests upon point (2) above. The remainder of the charged errors are considered solely due to their being presented and do not, as observed infra, weigh in the final disposition of this appeal.

Before addressing the specifically charged errors, some prefatory remarks are in order. Mo.Const.Art. III, § 50 (1945) provides that initiative petitions shall be submitted to the Secretary of State "not less than four months before the election ..." In the instant case, the petitions were filed exactly four months prior to the general election. Perhaps some thought might be in order to such filing some six months prior to the election. The reason for this thought is the extremely limited time placed upon the courts if and when a proposal is challenged by opponents of the measure. A longer prescribed time would enable our courts to give greater in-depth consideration of all the views of all parties interested in the measure. As it now stands, our courts are placed under such a time constraint and that, coupled with the immediacy of the situation, requires a resetting of dockets along with a number of other procedural and administrative problems that a longer time-period would avoid; not only a more orderly consideration of any such proposal, but more time for our courts to consider all attending ramifications of any such proposal. In addition, the Missouri General Assembly, because of the same problems as noted just previously, should explore changes within Chapter 116, RSMo 1978 which would directly define a time-period for certification by the Secretary of State, plus a statutory time limitation within which any challenge to such a proposal must be made. This change would further enhance the court's opportunity to judicially review the various viewpoints free of the rushed and frenzied consideration of basic constitutional and legal questions which now attend any judicial review of such proposals. It would also permit review by the Supreme Court.

In addition, it should be made quite clear that the decision herein rests solely upon the factual and legal disputes raised by this case. This court must and has considered this matter completely detached from any attitude in support of or any attitude in opposition to the measure proposed herein. This court, in order to maintain its proper position within our system, must always and continues to render its decisions in such a detached atmosphere. It remains for the people through their vote and the proponents and opponents through their chosen media of expression to decide and discuss the economic, social and moral implications of such a proposal and its effect upon our state as a whole.

Under point (1), appellants charge that the trial court erred in declaring that § 116.140 requires the Secretary of State to strike names not counted by election authorities within 30 days of the receipt of the petitions or else all signatures must be counted.

This court concludes that appellants are correct in their assertion that the trial court erred in its interpretation of § 116.140. The reason that the trial court erred is that § 116.140 has no application to the instant case. In considering this charged error, consideration must be given to § 116.130, RSMo 1978, as well as to § 116.140. Section 116.130 reads:

116.130. Verification of petitions, procedure--rules and regulations

1. The secretary of state may send copies of petition pages to election authorities to verify that the persons whose names are listed as signers to the petition are registered voters. Each election authority shall check the signatures against voter registration records in his jurisdiction, but the election authority shall count as valid only the signatures of persons registered as voters in the county names in the circulator's affidavit.

2. If the election authority or the secretary of state determines that the congressional district number written after the signature of any voter is not the congressional district of which he is a resident, the election authority or the secretary of state shall correct the...