Court of Appeals of Missouri, Western District, Special Division
MISSOURI ELECTRIC COOPERATIVES, D/B/A ASSOCIATION OF MISSOURI ELECTRIC COOPERATIVES, ET AL., Appellants,
MISSOURI SECRETARY OF STATE JASON KANDER AND RETURNING GOVERNMENT TO THE PEOPLE AND TODD S. JONES, Respondents.
from the Circuit Court of Cole County, Missouri The Honorable
Patricia S. Joyce, Judge
Before: Karen King Mitchell, Presiding Judge, Cynthia L.
Martin, Judge and Anthony Rex Gabbert, Judge
Cynthia L. Martin, Judge
to an initiative petition, who claim the Secretary of
State's certification of the petition for inclusion on
the ballot should be reversed pursuant to section 116.200.1
because the initiative violates the First Amendment, the
Equal Protection Clause, and the Privileges and Immunities
Clause, appeal from a trial court judgment denying their pre-
election claims because they are not ripe for adjudication.
Because the constitutional challenges are not ripe for
pre-election judicial review, the trial court's judgment
and Procedural Background
December 2, 2014, Todd Jones ("Mr. Jones")
submitted to Secretary of State Jason Kander ("Secretary
of State") an initiative petition sample sheet proposing
to amend article VIII of the Missouri Constitution by adding
section 23 ("Proposed Measure"). Mr. Jones is the
Deputy Treasurer of Returning Government to the People, a
campaign committee organized under the laws of the State of
Missouri for the purpose of advocating for the passage of the
Proposed Measure. On January 13, 2015, the Secretary of State
certified the official ballot title for the Proposed Measure.
The official ballot title provides:
the Missouri Constitution be amended to:
• establish limits on campaign contributions by
individuals or entities to political parties, political
committees, or committees to elect candidates for state or
• prohibit individuals and entities from intentionally
concealing the source of such contributions;
• require corporations or labor organizations to meet
certain requirements in order to make such contributions; and
• provide a complaint process and penalties for any
violations of this amendment?
It is estimated this proposal will increase state government
costs by at least $118, 000 annually and have an unknown
change in costs for local government entities. Any potential
impact to revenues for state and local governments is
August 9, 2016, the Secretary of State certified the Proposed
Measure for inclusion on the ballot for the November 8, 2016
general election. The Proposed
Measure is several pages long, contains 8 sections and
numerous subsections, including 18 subsections under section
23.3 alone. The full text of the Proposed Measure is
attached. (Appendix 1, attached).
August 4, 2016, a petition for declaratory judgment and
injunctive relief contesting the Proposed Measure was filed
in the Circuit Court of Cole County against the Secretary of
State. A first amended petition ("Petition") was
filed on August 9, 2016, immediately after the Proposed
Measure was certified for inclusion on the ballot. The
Petition was filed pursuant to section 116.120.1, which
permits any citizen to seek an order compelling the Secretary
of State to reverse a decision that an initiative petition is
sufficient or insufficient to be certified for inclusion on
the ballot. The plaintiffs named in the Petition are Missouri
Electric Cooperatives, doing business as Association of
Missouri Electric Cooperatives ("AMEC"), David
Klindt ("Klindt"), and Legends Bank
("Legends"). AMEC, Klindt, and Legends are
collectively referred to as "Plaintiffs."
an association of 47 nonprofit cooperative systems organized
pursuant to Chapter 394, RSMo. AMEC has formed and maintains
a political action committee, AMEC-PAC. AMEC and its members
make contributions to AMEC-PAC. AMEC-PAC makes and receives
contributions to and from other political action committees.
Klindt is a Missouri citizen. Legends is a Missouri
state-chartered bank organized pursuant to the provisions of
Chapter 362, RSMo. Legends makes contributions to political
action committees formed by members of the Missouri Bankers
Petition alleges three counts. Count I alleges that the
Proposed Measure violates the Plaintiffs' rights under
the First Amendment to the United States Constitution and
article I, section 8 of the Missouri Constitution because:
19. Subsection 12 of Section 23.3 of the Proposed Measure specifically
prohibits political action committees from receiving
contributions from any entity other than "individuals;
unions; federal political action committees; and
corporations, associations and partnerships formed under
chapter 347 to 360, RSMo."
. . . .
25. Subsection 16(c) of Section 23.3 of the Proposed Measure prohibits campaign
committees, candidate committees, continuing committees,
exploratory committees, political party committees, and
political parties from receiving contributions from "any
foreign corporation that does not have the authority to
transact business in this state pursuant to Chapter 347,
[Petition ¶¶ 19, 25]
argue that Section 23.3(12) unreasonably restricts free
speech and free association in a manner that is neither
reasonably related nor narrowly tailored to address a State
interest in that it would operate to: (i) prohibit Missouri
state-chartered banks formed under Chapter 362, including
Legends, and state political action committees, such as
AMEC-PAC, from making contributions to political action
committees; (ii) prohibit the Chapter 394 members of AMEC
from making contributions to AMEC-PAC; and (iii) prohibit
AMEC-PAC from receiving contributions from other state
political action committees. Plaintiffs argue that Section
23.3(16)(c) unreasonably restricts free speech and free
association in a manner that is not reasonably related nor
narrowly tailored to address a State interest in that it
would operate to prohibit foreign corporations from making
contributions to Missouri candidates for office or committees
which might support them.
II alleges that the Proposed Measure violates the
Plaintiffs' rights under the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution
and article I, section 2 of the Missouri Constitution because
there is no rational basis for Section 23.3(12) of the
Proposed Measure's disparate treatment of corporations,
associations and partnerships formed under Chapters 347 to
360, banks formed under Chapter 362, political action
committees, and foreign corporations.
III alleges that the Proposed Measure violates the Privileges
and Immunities Clause of article IV, section 2 of the United
States Constitution because Section 23.3(16)(c) of the
Proposed Measure would treat foreign business corporations
differently than domestic business corporations or foreign
limited liability corporations with no rational basis to do so.
August 9, 2016, Returning Government to the People and Mr.
Jones (collectively "Intervenors") filed a consent
motion seeking to intervene as defendants. The motion was
granted by the trial court on August 23, 2016.
August 19, 2016, the Secretary of State filed his answer to
the Petition, and asserted the affirmative defense that the
Petition presented constitutional challenges to the Proposed
Measure that are not ripe for adjudication nor justiciable,
requiring the Petition to be dismissed.
August 23, 2016, the parties submitted a joint stipulation of
facts and exhibits to the trial court, and arguments were
heard by the trial court. After considering pre-trial briefs
submitted by the parties, the joint stipulation of facts and
exhibits, the arguments of counsel,  and post-trial proposed judgments
submitted by the parties, the trial court entered its
judgment on August 25, 2016 ("Judgment"). The
Judgment found in favor of the Secretary of State and
Intervenors and against Plaintiffs on all counts of the
Petition. The Judgment concluded that the Petition alleged
substantive constitutional challenges to the Proposed Measure
that are not ripe for pre-election judicial review because:
(i) the Plaintiffs challenge only a small subset of the
Proposed Measure's applications; (ii) the challenges
raised are not challenges to the facial constitutionality of
the Proposed Measure so obvious as to constitute a matter of
form, but are instead as-applied challenges; and (iii) the
Proposed Measure contains a severability clause that would
permit any provisions determined to be unconstitutional
post-election to be severed. Alternatively, the Judgment made
findings and conclusions that denied each of the
Plaintiffs' constitutional challenges on the merits.
filed an immediate appeal on August 25, 2016. Our appellate
proceedings were substantially expedited to require
submission of a record on appeal by September 1, 2016, the
completion of briefing by September 9, 2016, and oral
argument on September 12, 2016.
this case was submitted on stipulated facts, our standard of
review is set forth in Schroeder v. Horack, 592
S.W.2d 742, 744 (Mo. banc 1979)." Kuehner v.
Kander, 442 S.W.3d 224, 227-28 (Mo. App. W.D. 2014)
(quoting Knight v. Carnahan, 282 S.W.3d 9, 15 (Mo.
App. W.D. 2009)). "Therefore, '[t]he only question
before us is whether the trial court made the proper legal
conclusion from the stipulated facts.'" Id.
at 228 (alteration in original) (quoting Knight, 282
S.W.3d at 15). "This Court is primarily concerned with
the correctness of the result, not the route taken by the
trial court to reach it; the trial court's judgment will
be affirmed if it is correct on any ground supported by the