Court of Appeals of Missouri, Western District, Special Division
ROGER B. STICKLER, et al. and JOHN PAUL EVANS, JR., Respondents,
MISSOURI SECRETARY OF STATE JOHN R. ASHCROFT and MIKE LOUIS, Appellants.
from the Circuit Court of Cole County The Honorable Daniel R.
Before: Victor C. Howard, P.J., and Lisa White Hardwick and
Alok Ahuja, JJ.
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.
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.
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 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 . . . .
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
bill provides civil and criminal remedies for violations.
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
reproduced the full text of SB 19 in an Appendix to this
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.
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, No. WD80613, 2017 WL
2772625 (Mo. App. W.D. June 27, 2017) (decision addressing
official ballot titles for Louis' initiative petitions).
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?
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
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.
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
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
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
. . . [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
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
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
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.
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?
Secretary of State and referendum proponent Louis
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 to a judgment as a
matter of law.'" (citation omitted)).
Secretary and Louis challenge each of the eight purported
deficiencies the circuit court identified in the summary
statement. We consider the issues in the order in which they
are discussed in the circuit court's judgment. We begin,
however, by reviewing the legal standards applicable to the
Secretary's summary statement.
116.334.1 specifies that, if a referendum or
initiative petition is approved as to form,
the secretary of state shall prepare and transmit to the
attorney general a summary statement of the measure which
shall be a concise statement not exceeding one hundred words.
This statement shall be in the form of a question using
language neither intentionally argumentative nor likely to
create prejudice either for or against the proposed measure.
116.190.3 permits citizens to challenge a proposed summary
statement on the basis that it "is insufficient or
When reviewing whether the secretary of state . . . ha[s]
complied with the fairness and sufficiency requirements under
section 116.190, this Court considers that
"'insufficient' means inadequate; especially
lacking adequate power, capacity, or competence" and
"'unfair' means to be marked by injustice,
partiality, or deception."
Brown, 370 S.W.3d at 653 (citations omitted). In
Brown, the Supreme Court explained that to satisfy
the statutory standards,
the summary statement must be adequate and state the
consequences of the initiative without bias, prejudice,
deception, or favoritism. The language used should fairly and
impartially summarize the purposes of the measure so that
voters will not be deceived or misled. It should accurately
reflect the legal and probable effects of the proposed
initiative. Sometimes it is necessary for the secretary of
state's summary statement to provide a context reference
that will enable voters to understand the effect of the
Requiring fairness and sufficiency of an initiative's
summary statement . . . reflects that there are procedural
safeguards in the initiative process that are designed
either, (1) to promote an informed understanding by the
people of the probable effects of the proposed amendment, or
(2) to prevent a self-serving faction from imposing its will
upon the people without their full realization of the effects
of the amendment. Initiative process safeguards assure that
the desirability of the proposed amendment may be best judged
by the people in the voting booth.
Brown, 370 S.W.3d at 654 (citations and internal
quotation marks omitted); see also, e.g.,
Dotson v. Kander, 464 S.W.3d 190, 195-96 (Mo. banc
2015); Shoemyer v. Mo. Sec'y of State, 464
S.W.3d 171, 174 (Mo. banc 2015).
summary statement should inform voters of the "central
feature[s]" of the initiative or referendum proposal.
Boeving v. Kander, 493 S.W.3d 865, 875 (Mo. App.
W.D. 2016) (quoting Seay v. Jones, 439 S.W.3d 881,
891 (Mo. App. W.D. 2014)); see also Hill v.
Ashcroft, No. WD80613, 2017 WL 2772625, at *20 (Mo. App.
W.D. June 27, 2017) (finding summary statement insufficient
where it failed to describe "an important and
fundamental part" of the initiative). At the same time,
"[t]he summary statement need not set out the details of
the proposal to be fair and sufficient. The test is not
whether increased specificity and accuracy would be
preferable or provide the best summary." Brown,
370 S.W.3d at 656 (citations and internal quotation marks
"even if the language proposed by [the opponents] is
more specific, and even if that level of specificity might be
preferable, whether the summary statement prepared by the
Secretary of State is the best language for ...