Ritter v. Mo. Sec'y of State John Ashcroft

• Decision Date: 21 September 2018
• Docket Number: c/w WD82116,c/w WD82111,c/w WD82117,WD82110
• Parties: PAUL RITTER and DANIEL P. MEHAN, Respondents/Cross-Appellants, v. MISSOURI SECRETARY OF STATE JOHN ASHCROFT, Respondent, and SEAN SOENDKER NICHOLSON and CLEAN MISSOURI, Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

PAUL RITTER and DANIEL P. MEHAN, Respondents/Cross-Appellants, v. MISSOURI SECRETARY OF STATE JOHN ASHCROFT, Respondent,andSEAN SOENDKER NICHOLSON and CLEAN MISSOURI, Appellants/Cross-Respondents.

WD82110

c/w WD82111

c/w WD82116

c/w WD82117

MISSOURI COURT OF APPEALS WESTERN DISTRICT

September 21, 2018

Appeal from the Circuit Court of Cole County

The Honorable Daniel R. Green, Judge

Before Special Division: Alok Ahuja, P.J., and Thomas H. Newton and Anthony Rex Gabbert, JJ.

The Secretary of State certified Initiative Petition 2018-048 for inclusion on the November 2018 general election ballot. The Initiative Petition proposes to amend various provisions of Article III of the Missouri Constitution, which addresses the legislative department, and add three new sections to Article III. Respondents and Cross-Appellants Paul Ritter and Daniel P. Mehan filed this lawsuit in the Circuit Court of Cole County pursuant to § 195.200,¹ arguing that the Initiative Petition was invalid on multiple grounds, and that it should accordinglynot appear on the ballot. Their lawsuit named Secretary of State John R. Ashcroft as the defendant. The proponents of the Initiative Petition, Sean Soendker Nicholson and Clean Missouri, were permitted to intervene in the circuit court proceeding to defend the validity of the Petition.

The circuit court accepted two of Ritter and Mehan's challenges to the Initiative Petition. The court entered an injunction ordering the Secretary of State to rescind and withdraw his certification of the Initiative Petition, and instead issue a certificate finding the Initiative Petition to be insufficient.

Nicholson and Clean Missouri appeal, arguing that the Initiative Petition is valid, and should appear on the November 2018 general election ballot. We reverse.

Factual Background

Nicholson is a Missouri resident who serves as Deputy Treasurer of Clean Missouri. Clean Missouri is a campaign committee registered under chapter 130, RSMo; among its purposes is to support passage of the Initiative Petition.

On November 23, 2016, Nicholson submitted to the Secretary of State a sample sheet for what was later denominated Initiative Petition 2018-048. The Initiative Petition proposes to amend sections 2, 5, 7 and 19 of Article III of the Missouri Constitution, and to adopt three new sections to be known as sections 3, 20(c) and 20(d). A copy of the Petition is attached as an Appendix to this opinion.

The Initiative Petition would:

? require legislators and employees of the General Assembly to wait two years after the conclusion of the legislative session in which they last worked, before they could serve as paid lobbyists (§ 2);

? prohibit legislators and legislative employees from accepting gifts valued at more than $5.00 from paid lobbyists (§ 2(a));

? prohibit candidates for the Senate from accepting campaign contributions of more than $2,500.00 in any one election cycle, and prohibit House candidates from accepting contributions of more than $2,000.00 (§ 2(c));? prohibit candidates from accepting contributions from any federal political action committee ("PAC"), unless the committee has filed the same financial disclosure reports as Missouri PACs (§ 2(f));

? declare that legislative records are public records, and legislative proceedings are public meetings, subject to generally applicable public-access laws, including the "Sunshine Law" (§§ 19(b) and (c)); and

? prohibit legislators and legislative candidates from engaging in political fundraising activities on State property (§ 20(c)).

In addition, in new § 3, and in amendments to Article III, § 7, the Initiative Petition proposes to substantially modify the procedure for apportioning House and Senate Districts following a decennial census. (The reapportionment process for the House of Representatives currently appears in Article III, § 2.) The Petition proposes to establish a new position known as the "non-partisan state demographer," to be selected through an application process overseen by the State Auditor, and with the participation of the majority and minority leaders of the Senate. The non-partisan state demographer is charged with preparing proposed legislative re-districting plans and maps following the decennial census. In preparing those redistricting proposals, the demographer is charged with giving the districts "a total population as nearly equal as practicable to the ideal population for such districts," and with complying with the requirements of the United States Constitution and federal laws, including the Voting Rights Act of 1965. The demographer is also directed that

Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness. Partisan fairness means that parties shall be able to translate their popular support into legislative representation with approximately equal efficiency. Competitiveness means that parties' legislative representation shall be substantially and similarly responsive to shifts in the electorate's preferences.

The Petition also directs the demographer to consider geographic contiguity, the boundaries of existing political subdivisions, and the compactness of the proposed districts. These considerations, however, are expressly subordinated toconsideration of equal population, compliance with federal law, and partisan fairness and competitiveness.

Sections 3 and 7 of the Petition provide that, within six months following the release of the decennial census results, the non-partisan state demographer shall file with the Secretary of State "a tentative plan of apportionment and map of the proposed districts, as well as all demographic and partisan data used in the creation of the plan and map." The Petition largely retains the procedure found in the current Missouri Constitution for the Governor to select House and Senate reapportionment commissions with legislator input. Under the Petition, the reapportionment commissions are charged with holding at least three public hearings concerning the demographer's proposed apportionment plan. The commissions may make modifications to the demographer's proposed plan and map, but only "by a vote of at least seven-tenths of the commissioners." The Petition provides that, "[i]f no changes are made or approved as provided for in this subsection, the tentative plan of apportionment and map of proposed districts shall become final."

On December 6, 2016, the Secretary of State approved the Initiative Petition as to form. On January 5, 2017, the Secretary certified the official ballot title for the Petition. The summary statement portion of the official ballot title, written by the Secretary of State, reads as follows:

Shall the Missouri Constitution be amended to:

• change process and criteria for redrawing legislative districts during reapportionment;

• change limits on campaign contributions that candidates for state legislature can accept from individuals or entities;

• establish a limit on gifts that state legislators, and their employees, can accept from paid lobbyists;

• prohibit state legislators, and their employees, from serving as paid lobbyists for a period of time;• prohibit political fundraising by candidates for or members of the state legislature on State property; and

• require legislative records and proceedings to be open to the public?

Clean Missouri gathered signatures on the Petition, and submitted those signatures to the Secretary of State on May 3, 2018. On August 2, 2018, the Secretary issued a certificate finding that 231,460 of the signatures submitted by Clean Missouri were valid. The Secretary found that the Initiative Petition complied with the requirements of the Missouri Constitution and chapter 116, RSMo, and directed that it be placed on the November 6, 2018 general election ballot.

Ritter and Mehan filed substantially similar petitions in the Circuit Court of Cole County, alleging that the Initiative Petition was invalid on multiple grounds, and that the Secretary of State's certification of the Petition was erroneous and should be enjoined. Ritter and Mehan made the following claims: (1) that the Petition contains more than one subject in violation of Article III, § 50 and Article XII, § 2(b) of the Missouri Constitution (Count I); (2) that the Petition amends multiple articles of the Missouri Constitution in violation of Article III, § 50 and Article XII, § 2(b) (Count II); (3) that the Petition failed to properly set forth the text of the proposed measure, and of the constitutional provisions being amended or repealed, in violation of Article III, § 50 and § 116.050 (Count III); and (4) that the Petition fails to identify all provisions of the Constitution that would be amended or repealed by the Petition's adoptions, in violation of Article III, § 50 and Article XII, § 2(b) (Count IV).² The two cases were consolidated for hearing, and submitted tothe circuit court on stipulated facts. Although Ritter and Mehan's petitions named only the Secretary of State as a defendant, Nicholson and Clean Missouri were permitted to intervene in both cases.

On September 14, 2018, the circuit court entered its Final Judgment and Order. The circuit court found on Count I that the Initiative Petition improperly addressed more than a single subject, because "the twenty or so substantive changes outlined in the Petition relate to at least two different and extremely broad purposes: (1) the organization of the General Assembly; and (2) ethics or campaign finance regulation aimed at avoiding misconduct by public officials in multiple branches and levels of government." The court found that, in this regard, the Initiative Petition "is hauntingly similar to a petition the Missouri Supreme Court found to violate the single subject rule in Missourians to Protect the Initiative Process [v. Blunt], 799 S.W.2d [824,] 830 [(Mo. banc 1990)]."

The circuit court also found in Ritter and Mehan's favor on Count II, which alleged that the Petition...