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Missouri Electric Cooperatives v. Kander

Court of Appeals of Missouri, Western District, Special Division

September 13, 2016

MISSOURI ELECTRIC COOPERATIVES, D/B/A ASSOCIATION OF MISSOURI ELECTRIC COOPERATIVES, ET AL., Appellants,
v.
MISSOURI SECRETARY OF STATE JASON KANDER AND RETURNING GOVERNMENT TO THE PEOPLE AND TODD S. JONES, Respondents.

         Appeal 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

         Challengers 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 is affirmed.

         Factual and Procedural Background[1]

         On 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:

         Shall 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 judicial office;
• 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 unknown.

         On August 9, 2016, the Secretary of State certified the Proposed Measure for inclusion on the ballot for the November 8, 2016 general election.[2] 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).

         On 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."

         AMEC is 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 Association.

         The 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[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[4] 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, RSMo."

[Petition ¶¶ 19, 25]

         Plaintiffs 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.

         Count 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.

         Count 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[5] with no rational basis to do so.

         On 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.

         On 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.

         On 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, [6] 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.

         Plaintiffs 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.

         Standard of Review

         "Because 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 ...


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