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Boeving v. Kander

Supreme Court of Missouri, En Banc

September 20, 2016

JIM BOEVING, PATTY ARROWOOD, ROBERT E. PUND, and ROBERT A. KLEIN, Appellants,
v.
MISSOURI SECRETARY OF STATE JASON KANDER, RAISE YOUR HAND FOR KIDS, and ERIN BROWER, Respondents.

         APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E. Beetem, Judge.

          Paul C. Wilson, Judge

         Appellants brought several challenges to the Secretary of State's August 9, 2016, decision certifying Amendment No. 3, a constitutional amendment proposed by initiative petition, for the November 8, 2016 general election ballot. The trial court rejected some of these challenges on their merits and determined that the remainder were premature. This Court has jurisdiction pursuant to article V, section 3, of the Missouri Constitution, and the trial court's judgment is affirmed.

         Background

         This appeal arises from three separate cases brought pursuant to section 116.200.1[1] by various individuals challenging the Secretary of State's August 9, 2016, decision certifying Amendment No. 3 for the November 8, 2016, general election ballot. All three cases were heard in the trial court on a common record and resolved in a common judgment. The trial court's findings of fact include the following.

         I. Amendment No. 3

         In 2015, Raise Your Hand For Kids, Inc., a Missouri non-profit corporation and campaign committee ("RYH4K"), and Ms. Brower, one of its directors (collectively, "Proponents") sought to amend article IV of the Missouri Constitution by adding a new section 54 and subsections 54(a)-(c). Proponents' counsel submitted an initiative petition sample sheet containing the full text of the proposed constitutional amendment ("Amendment No. 3")[2] to the Secretary of State on November 20, 2015.

         Following the statutory procedures for preparing an official ballot title, the Secretary: (1) drafted the summary statement portion of the ballot title, § 116.160, and (2) forwarded Amendment No. 3 to the State Auditor for preparation of the fiscal note and drafting of the fiscal note summary portion of the ballot title, § 116.175. On January 5, 2016, the Secretary certified the combination of his summary statement and the Auditor's fiscal note summary as the official ballot title. § 116.180. As required by section 116.180, Proponents affixed this official ballot title to their initiative petition, printed numerous copies, and began gathering signatures.

         On May 7, 2016, Proponents submitted to the Secretary of State more than 330, 000 signatures in support of Amendment No. 3. Each of the signature pages contained the full text of Amendment No. 3 and the official ballot title certified by the Secretary of State on January 5. Following verification by local election authorities, the Secretary of State determined that Proponents had submitted a sufficient number of valid signatures to meet the constitutional threshold for constitutional amendments by initiative petition, i.e., more than eight percent of the legal voters (based on the number of votes in the last gubernatorial election) in six of Missouri's eight congressional districts. Accordingly, on August 9, 2016, the Secretary of State issued a Certificate of Sufficiency stating Amendment No. 3 would be placed before the voters on the November 8, 2016, general election ballot.

         II. Ballot title litigation

         On January 15, 2016, Mr. Boeving challenged the official ballot title that had been certified by the Secretary of State on January 5, 2016. He filed this "Ballot Title Litigation" pursuant to section 116.190. Because Mr. Boeving challenged both portions of the ballot title, i.e., the summary statement and the fiscal summary, he named both the Secretary of State and the State Auditor as defendants. § 116.190.2. Proponents sought (and were granted) intervention in the Ballot Title Litigation. On May 19, 2016, after Proponents had gathered all of the signatures in support of Amendment No. 3 and submitted them to the Secretary of State, the trial court entered judgment in this Ballot Title Litigation. It rejected Mr. Boeving's challenge to the summary statement portion of the ballot title but determined that the fiscal note summary portion of the ballot title was "unfair and insufficient" under section 116.190.3.

         The Auditor and Proponents appealed the portion of the trial court's judgment pertaining to the fiscal note summary, and Mr. Boeving cross-appealed the trial court's denial of his challenge to the summary statement. The court of appeals reversed the judgment. It held that the fiscal note summary portion of the ballot title was "fair and sufficient" but held that the summary statement portion of the ballot was "unfair and insufficient." Boeving v. Kander, __ S.W.3d__, __ (Mo. App. July 8, 2016) (Case No. WD79694). As a result, it certified "the following [corrected] summary statement language to the Secretary of State, for inclusion in the official ballot title for the initiative petition …." Id. This Court denied transfer, see Case No. SC95802 (July 14, 2016), and the court of appeals issued its mandate on July 15, 2016. On July 18, 2016, pursuant to section 116.190.4, the Secretary of State certified the new ballot title with the changes ordered by the court of appeals.

         The ballot title certified by the Secretary of State on July 18 was not included on the initiative petitions that Proponents had circulated for signatures. This is because the signature gathering process had been completed - and the signed petitions submitted to the Secretary of State - on May 7, long before the court of appeals issued its mandate on July 15 or the Secretary of State certified the revised ballot title on July 18. Instead, all of the signatures were gathered and submitted to the Secretary of State using petitions bearing the ballot title certified by the Secretary of State on January 5, 2016.

         III. The present litigation

         On August 9, 2016, the Secretary of State certified that Proponents had submitted sufficient valid signatures to have Amendment No. 3 put before Missouri voters on the November 8, 2016, general election ballot. In response, Mr. Boeving, Ms. Arrowood, and Messrs. Pund and Klein filed three separate lawsuits seeking to compel the Secretary to reverse this decision. § 116.200.1. For ease of analysis, the challengers' claims are aggregated and the challengers are referred to collectively as "Opponents."

         Opponents first claimed that the Secretary should not have counted any of the signatures gathered and submitted by Proponents because those signatures were gathered and submitted using the official ballot title certified by the Secretary on January 5, 2016, without the changes ordered by the court of appeals on July 15, 2016. Second, they claimed that Amendment No. 3 violates article III, section 50, of the Missouri Constitution, which states in pertinent part: "Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith[.]" Third, Opponents claimed that Amendment No. 3 violates the first clause of the first sentence of article III, section 51, of the Missouri Constitution, which states that the "initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby …." Finally, Opponents claimed that Amendment No. 3 violates the second clause of the first sentence of article III, section 51, which states that the "initiative shall not be used … for any other purpose prohibited by this constitution, " in that the operation and effect of Amendment No. 3 (if approved and implemented) could violate various preexisting provisions of the Missouri Constitution.

         Proponents intervened and, together with the Secretary, defended the August 9 certification of Amendment No. 3 against Opponents' challenges. With respect to Opponents' first claim, the Secretary and Proponents argued that the applicable sections of chapter 116 do not require the Secretary to reject Proponents' signatures merely because of a court-ordered change to the official ballot title that occurred after the signatures were gathered and submitted. In addition, Proponents claimed that - to the extent one or more statutes in chapter 116 are construed to require the Secretary to reject the signatures gathered and submitted by Proponents - those provisions are unconstitutional because they infringe upon Proponents' rights to propose constitutional amendments by initiative petition under article III, section 49, of the Missouri Constitution.

         The trial court did not formally consolidate Opponents' cases, but all three cases were heard at the same time, on a common record, and were resolved in a common judgment. The trial court rejected Opponents' first claim and determined that the Secretary properly found Proponents had submitted a sufficient number of valid signatures to qualify for the ballot under article III, section 50. It also rejected Opponents' second claim and determined that Amendment No. 3 did not violate the "single article" or "single subject" requirements in article III, section 50. Finally, the trial court determined that Opponents' third and fourth claims were premature and could be raised only if - and after - Missouri voters approved Amendment No. 3 in the 2016 general election. Because the trial court determined that the applicable statutes in chapter 116 do not require the Secretary to reject the signatures gathered and submitted by Proponents, it had no occasion to address Proponents' alternative constitutional claims.

         Opponents timely appealed the trial court's judgment to the court of appeals. The court of appeals formally consolidated the appeals and, on September 8, 2016, transferred the matter to this Court on the basis that article V, section 3, of the Missouri Constitution gives this Court exclusive appellate jurisdiction over Opponents' appeal.

         Analysis

         I. This Court has exclusive appellate jurisdiction

         Opponents did not assert any claims in the trial court that, on appeal, fall within this Court's exclusive jurisdiction, and the Secretary did not raise any such claims in defending Opponents' challenges. Proponents, however, did raise such a claim. They argued that if - but only if - the Opponents are correct (i.e., that one or more statutory provisions in chapter 116 require the Secretary not to count the signatures Proponents had gathered and submitted), then whichever provisions in chapter 116 mandate such a result are ...


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