Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stickler v. Ashcroft

Court of Appeals of Missouri, Western District, Special Division

July 28, 2017

ROGER B. STICKLER, et al. and JOHN PAUL EVANS, JR., Respondents,
v.
MISSOURI SECRETARY OF STATE JOHN R. ASHCROFT and MIKE LOUIS, Appellants.

         Appeal from the Circuit Court of Cole County The Honorable Daniel R. Green, Judge

          Before: Victor C. Howard, P.J., and Lisa White Hardwick and Alok Ahuja, JJ.

          Alok Ahuja, Judge

         Mike 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.

         Factual Background

         On 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.

         SB 19 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[1] 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 . . . .

         The 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 legal effect.

         The bill provides civil and criminal remedies for violations.

         Sub-section 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 section.

         We have reproduced the full text of SB 19 in an Appendix to this opinion.

         Appellant 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.

         The 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).

         The 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?

         On 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 State Auditor.

         On 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.

         The 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 respects:

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 referendum.
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 both.
. . . [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 other efforts.
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 in 2017."
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 "forced" redundant.
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.

         Based 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?

         The Secretary of State and referendum proponent Louis appeal.[2]

         Standard of Review

         "De 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)).

         Analysis

         The 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.

         I.

         Section 116.334.1[3] 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.

         Section 116.190.3 permits citizens to challenge a proposed summary statement on the basis that it "is insufficient or unfair."

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 proposed change.
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).

         The 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).[4] 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 omitted).

"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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.