Protect Consumers' Access to Quality Home Care Coal., LLC v. Kander

• Decision Date: 17 November 2015
• Docket Number: WD 79100
• Citation: 488 S.W.3d 665
• Parties: Protect Consumers' Access To Quality Home Care Coalition, LLC and Elisa Pellham, Appellants, v. Jason Kander, Secretary of State of Missouri and Nicole R. Galloway, State Auditor of Missouri, Respondents.
• Court: Missouri Court of Appeals

488 S.W.3d 665

Protect Consumers' Access To Quality Home Care Coalition, LLC and Elisa Pellham, Appellants,

v.Jason Kander, Secretary of State of Missouri and Nicole R. Galloway, State Auditor of Missouri, Respondents.

WD 79100

Missouri Court of Appeals, Western District.

OPINION FILED: November 17, 2015 Motion for Rehearing and/or Transfer to Supreme Court Denied December 22, 2015

Lowell D. Pearson and Robert R. Harding, Jefferson City, MO, for appellants.

Jeremiah Morgan and Paul Harper, Jefferson City, MO, for respondents.

Before Special Division: James E. Welsh, Presiding Judge, Gary Dean Witt, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt, Judge

This appeal raised issues regarding the summary statement, fiscal note summary, and fiscal note of an initiative petition filed with the Missouri Secretary of State. The initiative petition seeks to require providers of certain in-home services and vendors of consumer-directed services, which receive reimbursement from the State of Missouri pursuant to the MO HealthNet Program, to pay a certain required percentage of the revenue derived from these services to the individual performing the services in the form of wages and benefits. Plaintiffs Protect Consumers' Access to Quality Home Health Care Coalition, LLC and Elisa Pellham (collectively “Plaintiffs”) appeal the Amended Final Judgment of the trial court certifying the Official Ballot Title, including the summary statement, fiscal note summary, and fiscal note, and denying all of Plaintiffs' claims. We affirm in part, reverse in part, and remand for certification of a corrected summary statement.

FACTUAL BACKGROUND

Jeffrey Mazur submitted to the Missouri Secretary of State (“Secretary”) an initiative petition sample sheet (the “Initiative”) proposing a number of statutory amendments in relation to Chapter 208.¹ The Initiative seeks to provide that “in-home service providers which receive payments made on behalf of an eligible needy person pursuant to section 208.152, or other state statute providing for payments on behalf of such persons” must pay at least 85% of the revenue received from those services on the “wages and benefits” of the employee who performed those services. Section 208.152 is part of the State of Missouri's system to provide for MO HealthNet (i.e., Medicaid) payments on behalf of eligible persons. Similarly, the Initiative would require vendors of “consumer-directed services” to pay at least 85% of the funds paid by the State for those services to personal care attendants.

The summary statement (“Summary Statement”) prepared by the Secretary provides the following:

Shall Missouri law be amended to require in-home service providers and vendors to pay an employee at least 85 percent of the state funds they received for the service provided by the employee to eligible individuals?

The State Auditor's office (the “Auditor”) followed its normal processes to prepare a fiscal note (“Fiscal Note”) and fiscal note summary (“Fiscal Note Summary”).

The Fiscal Note Summary prepared by the Auditor provides the following:

State universities and governmental entities estimate one-time costs exceeding $100,000 with the total costs being unknown and increased annual costs of at least $115,000. Local governmental entities estimate no costs or savings from this proposal.

Plaintiffs filed a timely Petition challenging the Summary Statement, Fiscal Note Summary, and Fiscal Note as insufficient and unfair. The Circuit Court of Cole County conducted a hearing and heard oral arguments on Plaintiffs' claims. The trial court entered its Judgment, which was subsequently amended, that denied Plaintiffs' claims and certified the Official Ballot Title, including the Summary Statement, Fiscal Note Summary and Fiscal Note. Plaintiffs now appeal.

STANDARD OF REVIEW

“De novo review of the trial court's legal conclusions about the propriety of the secretary of state's summary statement and the auditor's fiscal note and fiscal note summary is the appropriate standard of review when there is no underlying factual dispute that would require deference to the trial court's factual findings.” Brown v. Carnahan, 370 S.W.3d 637, 653 (Mo. banc 2012).

ANALYSISPoint One

In Point One on appeal, the Plaintiffs argue the trial court erred in certifying the Summary Statement because the Secretary's Summary Statement is insufficient and unfair in that it fails to summarize the initiative in a manner that will not deceive or mislead voters.

The statute that governs the promulgation of summary statements for petitions states, in relevant part:

[T]he secretary of state shall 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.

§ 116.334.1.

Citizens may challenge proposed summary statements alleging they are insufficient or unfair. § 116.190; Mo. Mun. League v. Carnahan, 364 S.W.3d 548, 552 (Mo. App. W.D. 2011). “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].”² Mo. Mun. League, 364 S.W.3d at 552 (quoting Cures Without Cloning v. Pund, 259 S.W.3d 76, 81 (Mo. App. W.D. 2008) ).

The ballot title is sufficient if it “makes the subject evident with sufficient clearness to give notice of the purpose to those interested or affected by the proposal.” Overfelt v. McCaskill, 81 S.W.3d 732, 738 (Mo. App. W.D. 2002) (superseded in part by statutes) (quoting United Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 140 (Mo. banc 2000) ). “[E]ven if the language proposed by [Plaintiffs] is more specific, and even if that level of specificity might be preferable, whether the summary statement prepared by the Secretary of State is the best language for describing the referendum is not the test.” Id. (quoting Bergman v. Mills, 988 S.W.2d 84, 92 (Mo. App. W.D. 1999) ). “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.’ ” Cures Without Cloning, 259 S.W.3d at 81 (quoting Bergman, 988 S.W.2d at 92 ).

The Plaintiffs claim that the Summary Statement is insufficient or unfair in a number of respects. The Plaintiffs argue the Summary Statement: (1) fails to inform voters that the subject of the measure is in-home healthcare services for individuals in the MO HealthNet Program; (2) wrongly and confusingly describes “personal care attendants” as “employees”; (3) fails to describe who are “eligible individuals,” and “vendors,” and (4) uses the misleading term “pay”.

Plaintiffs first argue that the Summary Statement is insufficient or unfair because it fails to inform voters that the subject of the measure is in-home healthcare services for individuals receiving services under the MO HealthNet Program. Plaintiffs point is well taken. The Summary Statement is intended to give notice to voters of the subject of the initiative so that they may make an informed choice on whether to investigate the matter further. Thus, we have said that the Summary Statement must “make[ ] the subject evident with sufficient clearness to give notice of the purpose to those interested or affected by the proposal.” Overfelt, 81 S.W.3d at 738. “Sometimes it is necessary for the secretary of state's summary statement to provide a context reference that will enable voters to understand the effect of the proposed change.” Brown, 370 S.W.3d at 654.

The Summary Statement as currently drafted only uses the term “in-home service providers” and fails to give any indication as to the underlying subject matter or the individuals who would be affected by the Initiative. “In-home service providers” gives no indication as to what types of services are contemplated or under what programs. At the very least, the language must include a reference to MO HealthNet, the statutory scheme that is explicitly referenced in the Initiative itself, which would give notice regarding the subject matter and individuals who would be affected by the Initiative. We decline to go further and require that the services being provided are described as “healthcare” services, as requested by Plaintiffs, as the services provided by the vendors of consumer-directed services include services that would not necessarily be considered “healthcare.” See § 208.900 (services provided by personal care attendants include assisting customers with routine tasks, such as moving into and out of bed, consuming food and drink, bathing and grooming, housekeeping, etc.) As the new language will include a reference to MO HealthNet, this is sufficient to give fair and sufficient notice to voters of the subject matter of the proposal.

Second, Plaintiffs argue that the use of the term “employees” is misleading because the Initiative, insofar as it pertains to “vendors” that receive payments under the “consumer-directed services program,” would require 85% of the revenues received to be paid to “personal care attendants” who are not employees. The point is also well taken. Vendors that receive payments under the “consumer-directed services program” do not necessarily have an employer-employee relationship with personal care attendants. “Consumer-directed” is defined as “the hiring, training, supervising, and directing of the personal care attendant by the consumer, ” who is the person receiving the services. § 208.900(2) (emphasis added). A “personal care attendant” is defined as “a person, other than the consumer's spouse, who performs personal care assistance services for the consumer.” § 208.900(6). Vendors,...