Stickler v. Ashcroft

• Decision Date: 28 July 2017
• Docket Number: WD 80858 (consolidated with WD 80859, WD 80867, WD 80868)
• Citation: 539 S.W.3d 702
• Parties: Roger B. STICKLER, et al., and John Paul Evans, Jr., Respondents, v. Missouri Secretary of State John R. ASHCROFT and Mike Louis, Appellants.
• Court: Missouri Court of Appeals

539 S.W.3d 702

Roger B. STICKLER, et al., and John Paul Evans, Jr., Respondents,

v.Missouri Secretary of State John R. ASHCROFT and Mike Louis, Appellants.

WD 80858 (consolidated with WD 80859, WD 80867, WD 80868)

Missouri Court of Appeals, Western District.

Filed: July 28, 2017 Motion for Transfer to Supreme Court Denied October 5, 2017

Charles W. Hatfield, Jeremy A. Root and Rachel S. Flaster, Jefferson City, Jason K. Lewis and Michael C. Martinich–Sauter for appellants.

Lowell D. Pearson and Robert R. Harding, Jefferson City, Alan T. Simpson and Edward D. Greim, Kansas City for Respondents.

Before Special Division: Victor C. Howard, P.J., and Lisa White Hardwick and Alok Ahuja, JJ.

Alok Ahuja, Judge

Mike Louis is the proponent of a referendum petition concerning "right to work" legislation. Louis and Secretary of State John R. Ashcroft appeal from a judgment of the Circuit Court of Cole County, which found that the Secretary's summary statement for the referendum petition was unfair and insufficient. We reverse.

Factual Background

On February 2, 2017, the General Assembly passed Senate Substitute Number 2 for Senate Bill 19 ("SB 19"). SB 19 is the type of legislation commonly referred to as a "right to work" law. The Governor signed the bill into law on February 6, 2017. The legislation is scheduled to become effective on August 28, 2017.

SB 19 enacts a new § 290.590, RSMo. Section 290.590 provides in subsection 2:

2. No person shall be required as a condition or continuation of employment^[1] to:

(1) Become, remain, or refrain from becoming a member of a labor organization; [or]

(2) Pay any dues, fees, assessments, or other similar charges however denominated of any kind or amount to a labor organization....

The statute provides in sub-section 3 that

[a]ny agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed under this section is unlawful, null and void, and of no legal effect.

The bill provides civil and criminal remedies for violations.

Sub-section 7 of new § 290.590 contains a number of exemptions. Among other things, sub-section 7(5) provides that

This section shall not apply ... [t]o any agreement between an employer and a labor organization entered into before the effective date of this section but shall apply to any such agreement upon its renewal, extension, amendment, or modification in any respect after the effective date of this section.

We have reproduced the full text of SB 19 in an Appendix to this opinion.

Appellant Mike Louis is the President of the Missouri AFL–CIO, a federation of Missouri labor unions. On February 21, 2017, Louis submitted to the Secretary of State a sample referendum petition, which proposed that SB 19 "shall be referred to the voters of the State of Missouri, for their approval or rejection." The referendum petition was assigned petition number 2018–R002 by the Secretary.

The referendum petition is not Louis' only effort to prevent Missouri from becoming or remaining a "right to work" state. In November 2016, prior to his submission of the referendum petition, Louis submitted ten initiative petitions to the Secretary of State, each seeking to amend Article I, Section 29 of the Missouri Constitution to prohibit the State from enacting "right to work" legislation. Adoption of any of Louis' proposed constitutional amendments would require a "yes" vote. See Hill v. Ashcroft , 526 S.W.3d 299 (Mo. App. W.D. 2017) (decision addressing official ballot titles for Louis' initiative petitions).

The Secretary prepared a summary statement for Louis' referendum petition, which was approved by the Attorney General. The Secretary's summary statement read:

Do the people of the state of Missouri want to adopt Senate Bill 19 ("Right–to–Work") as passed by the general assembly in 2017, which prohibits as a condition of employment the forced membership in a labor organization (union) or forced payments of dues in full or pro-rata (fair-share); make any activity which violates employees' rights illegal and ineffective; allow legal remedies for anyone injured as a result of another person violating or threatening to violate employees' rights; and which shall not apply to union agreements entered into before the effective date of Senate Bill 19?

On March 28, 2017, the Secretary certified the official ballot title for the referendum petition, which included his summary statement, as well as a fiscal note summary prepared by the State Auditor.

On April 7, 2017, Respondents Roger Bruce Stickler, Mary Hill and Michael J. Briggs (the "Stickler plaintiffs") filed their Petition to Challenge Official Ballot Title to Initiative Petition 2018–R002 in the Circuit Court of Cole County. Respondent John Paul Evans filed a similar petition on the same date. Both petitions named the Secretary of State as the sole defendant, and raised multiple objections to the summary statement prepared by the Secretary. The plaintiffs did not challenge the fiscal note summary prepared by the Auditor in either case. The circuit court granted Louis leave to intervene in both cases.

The parties filed cross-motions for judgment on the pleadings. Although the cases were not formally consolidated, the circuit court held a combined hearing in the two cases, during which it heard argument of counsel. Following the hearing, the trial court entered a single judgment resolving both cases on June 22, 2017. In its judgment, the circuit court determined that the Secretary of State's summary statement was unfair and insufficient in the following respects:

1. It is improperly, unfairly, and insufficiently constructed, insofar as it contains subject-verb disagreement in identifying SB 19's effect, noting what it "prohibits," but also stating that it "make" activity illegal and "allow" legal remedies. The People are entitled to consider a question which is phrased in a grammatically-competent manner.

2. It is improperly, unfairly, and insufficiently constructed, insofar as it requires an affirmative vote (asking the People to "adopt") to preserve the Right to Work law, SB 19, even though it has already been enacted into law by the General Assembly and the Governor. The Court finds that it is of paramount importance that the summary statement reflect that the ballot measure is a referendum.

3. It is improperly, unfairly, and insufficiently constructed, insofar as—when coupled with the [proposed] constitutional amendments also submitted by [Louis]—its phrasing has the potential for creating voter confusion insofar as preservation of the Right to Work law would require an affirmative vote for Referendum 2018–R002, and a negative vote(s) on one or more of the initiatives for constitutional amendments submitted by the same Proponent of both.... [T]he language here presents a quintessential example of a situation—whether inadvertent or otherwise—where voter confusion is likely, and easily avoidable by framing the Referendum in a manner which more closely reflects the People's veto of a duly-enacted statute which the Proponent seeks, and consistent with the Proponent's other efforts.

4. It is improperly, unfairly, and insufficiently constructed insofar as it asks "Do the people of the state of Missouri want ..." rather than the more formal (and more succinct) "Shall the people of the state of Missouri...."

5. It is improperly, unfairly, and insufficiently constructed insofar as it incompletely represents that SB 19 was "passed by the general assembly in 2017," rather than accurately stating that SB 19 was "enacted into law in 2017."

6. It is improperly, unfairly, and insufficiently constructed insofar as it refers parenthetically to the requirement for the payment of union dues, or a portion thereof, as a condition of employment with the value-laden term "fair share." While the same might be said of the two instances of use of the word "forced," that language has not been challenged here, but is sufficiently addressed by use of the term "as a condition of employment," rendering the use of the word "forced" redundant.

7. It is improperly, unfairly, and insufficiently constructed insofar as it refers generally to "employee rights," rather than narrowly, succinctly, and with adequate specificity focusing upon those limited "rights" which are protected by the Right to Work law, and for which legal remedies are created.

8. It is improperly, unfairly, and insufficiently constructed insofar as it refers inaccurately and unnecessarily to "union agreements" to which the Right to Work law, SB 19, would not apply.

Based on the deficiencies it identified, the circuit court refused to certify the Secretary's summary statement. The court instead certified the following alternative language:

Shall the people of the state of Missouri reject Senate Bill 19 ("Right to Work"), enacted in 2017, which: (1) prohibits as a condition of employment membership in, or payments of dues or fees in full or in part to, a labor organization (union); (2) makes any agreement or activity violating its provisions illegal and ineffective; and (3) allows legal remedies for anyone injured as a result of violations or threats of violations of its provisions?

The Secretary of State and referendum proponent Louis appeal.²

Standard of Review

"De novo review of the trial court's legal conclusions about the propriety of the secretary of state's summary statement ... 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) (citation omitted). The fact that these cases were resolved on cross-motions for judgment on the pleadings confirms the lack of any disputed factual issues. See , e.g. , Pestka v. State , 493 S.W.3d 405, 408 (Mo. banc 2016) (judgment on the pleadings is properly granted where, " 'from the face of the pleadings, the moving party is entitled...