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Seay v. Jones

Court of Appeals of Missouri, Western District, Special Division

September 15, 2014

NORMAN R. SEAY, et al., Appellants,
v.
TIM JONES, et al., Respondents

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cole County. The Honorable Jon E. Beetem, Judge.

Jeremiah Morgan, Jonathan M. Hensley, David H. Welch, Jefferson City, MO, for respondents.

Anthony E. Rothert, St. Louis, MO and Gillian R. Wilcox, Kansas City, MO, for appellants.

Before: Alok Ahuja, C.J., and Victor C. Howard and Gary D. Witt, JJ. All concur.

OPINION

Page 884

Alok Ahuja, Chief Judge

Norman Seay and Nimrod Chapel (collectively " Seay" ) appeal a judgment entered by the Circuit Court of Cole County. The judgment rejected Seay's challenge to the official summary statement which is part of the official ballot title for House Joint Resolution No. 90 (" HJR 90" ). HJR 90 will appear on the November 4, 2014 general election ballot. HJR 90 asks voters to approve an amendment to the Missouri Constitution to authorize voting in

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advance of election day in general elections, if funds are appropriated and disbursed by the State to local election authorities to pay the costs of this early voting. The circuit court found that the summary statement Seay challenges was sufficient and fair.

Because we conclude that the summary statement fails to advise voters that early voting will occur only if funds are appropriated and disbursed by the State, we reverse, and certify to the Secretary of State an amended summary statement which more accurately describes the effect of the proposed constitutional amendment.

Factual Background

The General Assembly truly agreed to and finally passed House Joint Resolution No. 90 during its 2014 regular session.[1] The full text of HJR 90 appears in an Appendix to this opinion.

HJR 90 is a statewide ballot measure which, if passed, would amend Article VIII of the Missouri Constitution by adding a new § 11. Section 11.1 states that " [q]ualified voters of the state shall be entitled to vote in person or by mail in advance of the day of the general election, but only under the following subdivisions." HJR 90 provides that advance ballots may be cast in person or by mail " only during the six business days . . . immediately prior to and including the last Wednesday prior to the election day," and only " at the local election authority during its regular business hours." § 11.1(3). To be eligible for early voting, voters must be registered to vote four weeks before election day. § 11.1(1). Voters need not offer any explanation for their desire to cast an early ballot. § 11.1(2). Voters may request mail-in ballots only by a written, signed and dated request, which will be valid for only one general election. § 11.4. HJR 90 also specifies that election authorities must appoint election judges to oversee the advance voting, and may not disclose prior to the election day the identity of a qualified voter who has cast an advance ballot, without the voter's written authorization. § § 11.1(4), 11.2, 11.3.

Section 11.5 of HJR 90 makes the availability of advance voting in any particular election contingent on the State's appropriation and disbursement of funds to cover the costs of such voting. It provides:

No local election authority or other public office shall conduct any activity or incur any expense for the purpose of allowing voting in person or by mail in advance of the general election day unless a state appropriation is made and disbursed to pay the local election authority or other public office for the increased cost or expense of the activity.

The preamble to HJR 90 specifies that the proposed constitutional amendment will be submitted to voters at the November 4, 2014 general election, or at a special election called by the Governor for that purpose. Because no special election was called, HJR 90 will appear on the November 2014 general election ballot.

As authorized by § 116.155.2,[2] the General Assembly drafted an official summary

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statement to appear on the ballot as part of the official ballot title for the proposal. The summary statement drafted by the General Assembly states:

Shall the Missouri Constitution be amended to permit voting in person or by mail for a period of six business days prior to and including the Wednesday before the election day in all general elections?

The State Auditor prepared a fiscal note and fiscal note summary for HJR 90. The fiscal note summary, which together with the summary statement will constitute the official ballot title, states:

State governmental entities estimated startup costs of about $2 million and costs to reimburse local election authorities of at least $100,000 per election. Local election authorities estimated higher reimbursable costs per election. Those costs will depend on the compensation, staffing, and, [sic] planning decisions of election authorities with the total costs being unknown.

On June 30, 2014, the Secretary of State certified the official ballot title for HJR 90, which consisted of the summary statement prepared by the General Assembly, and the fiscal note summary prepared by the State Auditor, without change.

On July 2, 2014, Seay filed a petition challenging the sufficiency and fairness of the official summary statement for HJR 90. An amended petition was filed on July 16, 2014, adding Chapel as an additional plaintiff. Pursuant to the requirements of § 116.190.2, Seay named as defendants the President Pro Tem of the Senate, Tom Dempsey; the Speaker of the House, Tim Jones; the legislative sponsor of HJR 90,Tony Dugger; and the Secretary of State, Jason Kander. The amended petition specifies that each defendant is sued solely in his official capacity.

The Attorney General's Office entered its appearance on behalf of all defendants. Additionally, separate counsel entered an appearance on behalf of Dempsey, Jones, and Dugger (collectively " the Legislators" ).

On August 8, 2014, Seay filed a motion for summary judgment, as well as a motion to strike the pleadings filed by the Legislators' separate counsel. On the same day, the Attorney General's Office and the Legislators' counsel filed motions for judgment on the pleadings. The circuit court heard arguments of counsel on August 19, 2014. On August 25, 2014, the circuit court entered its judgment granting the defendants' motions for judgment on the pleadings, and finding the summary statement to be fair and sufficient. The court denied as moot both Seay's motion for summary judgment, and his motion to strike the Legislators' separate pleadings.

Seay filed his notice of appeal in the circuit court on August 25, 2014, the same day that judgment was entered. We granted Seay's motion to expedite the appeal on August 27. Following the filing of the record on appeal and the parties' briefs, we heard oral argument in the case on September 12, 2014.[3]

Discussion

Seay's briefing challenges both the circuit court's grant of the defendants' motions for judgment on the pleadings, and

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the court's denial of his motion for summary judgment.

An order denying a motion for summary judgment is not a final judgment and, therefore, is not reviewable on appeal unless the merits of the denied motion for summary judgment are intertwined with the propriety of an appealable order granting summary judgment to another party; under those circumstances, the denial of a motion for summary judgment may be reviewed on appeal.

Fed. Nat'l Mortg. Ass'n v. Conover, 428 S.W.3d 661, 666 n.9 (Mo. App. W.D. 2014) (citing Reeves v. Allstate Ins. Co., 327 S.W.3d 592, 598 (Mo. App. S.D.2010)); see also, e.g., Farmers Ins. Co. v. Wilson, 424 S.W.3d 487, 491 n.4 (Mo. App. S.D. 2014) (citing and quoting Grissom v. First Nat'l Ins. Agency, 371 S.W.3d 869, 879 (Mo. App. S.D. 2012)).

In this case, Seay's motion for summary judgment was the converse of the defendants' motions for judgment on the pleadings: while the defendants' motions argued that the summary statement was sufficient and fair based on the facts alleged in Seay's amended petition, his summary judgment motion alleged that the summary statement was insufficient because of its failure to mention certain central features of HJR 90. Each side's motions could virtually be read as briefs in opposition to the motion or motions filed by the other side. In these circumstances, the denial of Seay's motion for summary judgment is inextricably intertwined with the grant of the defendants' motions for judgment on the pleadings, and it is therefore reviewable here.

A court's grant of judgment on the pleadings is reviewed de novo. Coburn v. Mayer, 368 S.W.3d 320, 323 (Mo. App. W.D. 2012).

In reviewing the grant of a motion for judgment on the pleadings, this Court must decide whether the moving party is entitled to judgment as a matter of law on the face of the pleadings. The well-pleaded facts of the non-moving party's pleading are treated as admitted for purposes of the motion. A grant of judgment on the pleadings will be affirmed only if the facts pleaded by the petitioner, together with the benefit of all reasonable inferences drawn therefrom, show that petitioner could not prevail under any legal theory.

Emerson Elec. Co. v. Marsh & McLennan Cos., 362 S.W.3d 7, 12 (Mo. banc 2012) (citations and internal quotation marks omitted).

Similarly, a trial court's ruling on a motion for summary judgment is reviewed de novo. Brehm v. Bacon Twp., 426 S.W.3d 1, 3 (Mo. banc 2014).

In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material ...

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