Court of Appeals of Missouri, Western District, Special Division
AMERICAN CIVIL LIBERTIES UNION OF MISSOURI AND SARA E. BAKER, Appellants,
JOHN R. ASHCROFT, et al., Respondents.
from the Circuit Court of Cole County, Missouri The Honorable
Daniel R. Green, Judge
Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge
and Cynthia L. Martin, Judge
Cynthia L. Martin, Judge
American Civil Liberties Union of Missouri and Sara E. Baker
(collectively "ACLU") appeal a trial court judgment
dismissing its verified petition with prejudice and denying
pending motions in a proceeding where the ACLU sought a
temporary restraining order, preliminary and permanent
injunctive relief, and declaratory relief from State
officials after a referendum petition sample sheet was
rejected. Because the Secretary of State rejected the sample
sheet on constitutional grounds at a point when the Secretary
of State's exclusive authority was limited by section
116.332 to review of the sample sheet for
sufficiency as to form, we reverse the trial court's
judgment, and enter the judgment that should have been given
pursuant to Rule 84.14.
and Procedural Background
otherwise noted, the salient facts are
17, 2019, House Bill No. 126 ("HB 126") passed in
the second chamber of the Missouri General Assembly and was
sent to the Governor for approval. On May 24, 2019, Governor
Michael Parson signed HB 126 into law.
repeals seven statutes (sections 135.630, 188.010, 188.015,
188.027, 188.028, 188.043, and 188.052) and replaces the
repealed statutes with seventeen new provisions. The new
provisions all relate to the regulation of abortions. For one
of the seventeen new provisions, section 188.028, an
emergency clause applies, as follows:
Because of the need to protect the health and safety of women
and their children, both unborn and born, the repeal and
reenactment of section 188.028 of this act is deemed
necessary for the immediate preservation of the public
health, welfare, peace and safety, and is hereby declared to
be an emergency act within the meaning of the constitution,
and the repeal and reenactment of section 188.028 of this act
shall be in full force and effect upon its passage and
HB 126, sec. C. The remaining sixteen provisions of HB 126 do
not contain an emergency clause.
28, 2019, the ACLU submitted a referendum petition sample
sheet ("Sample Sheet") to Secretary of State John
("Jay") R. Ashcroft ("Secretary of
State"). The submission of a sample sheet is required by
section 116.332, and is the first step required to exercise
the referendum power reserved in the people by Article III,
section 49 of the Missouri Constitution. The Secretary of
State forwarded the Sample Sheet to Attorney General Eric S.
Schmitt ("Attorney General") and to State Auditor
Nicole Galloway ("Auditor") to be reviewed and
processed as required by section 116.332.
6, 2019, the Secretary of State notified the ACLU that its
Sample Sheet was being rejected on constitutional grounds as
follows: "Our legal department has determined that your
referendum is not compliant with Article III, Section 52(a)
of the Missouri Constitution." The Secretary of State
concluded that because HB 126 contained an emergency clause,
the act was constitutionally ineligible in its totality for
the referendum process. The Secretary of State reported no
other issues warranting rejection of the Sample Sheet. After
rejecting the Sample Sheet, the Secretary of State withdrew
the Sample Sheet from the Attorney General and the Auditor.
6, 2019, the ACLU filed suit in the Circuit Court of Cole
County, Missouri against the Secretary of State, the Attorney
General, and the Auditor, in their representative capacities
(collectively referred to as "the State"). The
ACLU's verified petition sought a temporary restraining
order, preliminary and permanent injunctive relief, and
declaratory relief. The petition sought a declaration that HB
126 is not subject to an emergency clause that forecloses
exercise of the power of referendum; a declaration that the
Sample Sheet was sufficient as to form and should have been
approved; permanent injunctive relief prohibiting the State
from rejecting the Sample Sheet on the basis of the emergency
clause applicable to section 188.028 of HB 126; permanent
injunctive relief requiring the Secretary of State to approve
the Sample Sheet, to prepare a ballot summary statement, and
to certify the official ballot title; permanent injunctive
relief requiring the Auditor to prepare a fiscal note and
fiscal note summary; and permanent injunctive relief
requiring the Attorney General to approve the ballot summary
statement and fiscal note.
ACLU then filed a motion for temporary restraining order and
for a preliminary injunction, and set the motion for hearing
on June 11, 2019. The ACLU's motion was accompanied by
suggestions in support which alleged that the Secretary of
State had no authority to consider constitutional matters in
connection with his review of the Sample Sheet for
sufficiency as to form pursuant to section 116.332, and that
in any event, the Secretary of State could not rely on the
emergency clause applicable to section 188.028 to reject the
Sample Sheet because a court must decide whether an emergency
clause is legitimate, and because the emergency clause did
not apply to all of the provisions of HB 126. The ACLU noted
the urgency of the circumstances, as it is prohibited from
collecting signatures on a referendum petition until the
Sample Sheet is approved, until the fiscal note and summary
are prepared, and until the ballot summary and title are
prepared and certified. The ACLU thus noted the urgency of
time, as referendum petitions with sufficient signatures must
be submitted no later than ninety days after adjournment of
the general assembly.
State filed suggestions in opposition to the motion. The
State acknowledged that the Sample Sheet was rejected based
solely on the emergency clause applicable to section 188.028
of HB 126. The State argued that temporary and preliminary
injunctive relief could not be used to compel the Secretary
of State to approve the Sample Sheet because interim
injunctive relief is limited to preserving the status quo;
that even if the Secretary of State was obligated to approve
the Sample Sheet, the ACLU could not enforce that obligation
because section 116.332 describes directory and not mandatory
acts; and that in the alternative, the exclusive remedy
available to the ACLU to compel the Secretary of State to
approve the Sample Sheet is mandamus, relief not sought in
the ACLU's petition.
11, 2019, the parties appeared by counsel to argue the
ACLU's motion. At the same time, counsel representing
David Humphreys ("Humphreys"), the proponent of a
separate referendum petition addressing HB 126, also
appeared. Humphreys' referendum petition sample sheet had
been identically rejected by the Secretary of State.
Humphreys filed his own lawsuit on June 7, 2019 which
similarly sought a temporary restraining order, preliminary
and permanent injunctive relief, and declaratory
relief. Though the ACLU's and Humphreys'
lawsuits were not consolidated, the trial court consolidated
the hearing on the ACLU's and Humphreys' motions for
temporary and preliminary injunctive relief.
a brief hearing on the pending motions where no evidence was
taken,  the parties repeated their arguments in
support of and in opposition to the motions for temporary and
preliminary injunctive relief. After hearing the parties'
arguments, the trial court noted on the record:
I do believe that you're asking me to compel the State
actor and the Secretary of State to do something, so I do
think that a writ of mandamus would have to issue from the
court. And I think [the State's counsel] is correct, that
neither party has asked me to do that.
So I'll give you a choice. I know that this is a time
sensitive case. Do you want leave to re-file your petition,
or do you want me to dismiss it and you re-file? Or do you
need a minute to talk . . . about that?
trial court clarified that if leave to amend was afforded,
the court presumed the parties would amend their petitions to
add a request for a writ of mandamus. Alternatively, the
trial court indicated it would "dismiss this case and
you can re-file it." The ACLU and Humphreys were granted
leave to file amended petitions by June 13, 2019, and the
parties were directed to reconvene on June 17, 2019.
ACLU did not file an amended petition. On June 13, 2019,
the trial court entered its order and judgment
("Judgment") in the ACLU's case as follows:
Being fully advised, the Court dismisses [the ACLU's]
petition and all claims with prejudice.
IT IS THEREFORE ORDERED AND DECREED:
1. [The ACLU's] petition is dismissed with prejudice. 2.
All pending motions are overruled.
19, 2019, the ACLU filed this appeal.
Disposition of Appeal
expedited the disposition of this appeal. Pursuant to Article
III, section 52(a) of the Missouri Constitution,
"[r]eferendum petitions shall be filed with the
secretary of state not more than ninety days after the final
adjournment of the session of the general assembly which
passed the bill on which the referendum is demanded."
Section 116.100 provides that "[t]he secretary of state
shall not accept any referendum petition submitted later than
5:00 p.m. on the final day for filing referendum
petitions." Section 116.334 prohibits the proponent of a
referendum petition from beginning the signature collection
process essential to filing a referendum petition until the
steps described in sections 116.332 and 116.334 have been
completed, one of which is the secretary of
state's approval of a referendum petition sample
sheet as sufficient as to form. The Secretary of State's
rejection of the Sample Sheet has thus thwarted the
ACLU's ability to proceed with signature collection, and
has the effect of compressing the already limited time
available to exercise the power of referendum.
trial court's Judgment dismissed the ACLU's petition
with prejudice, and thus dismissed the
petition's claims for declaratory and permanent
injunctive relief. The Judgment also denied the ACLU's
pending motion for interim injunctive relief.
denial of interim injunctive relief is ordinarily
interlocutory and ineligible for appellate
review. In any event, the Judgment's denial of
the ACLU's motion for interim injunctive relief is mooted
by the Judgment's dismissal with prejudice of the
ACLU's requests for declaratory and permanent injunctive
relief. We limit our review on appeal, therefore, to the
Judgment's dismissal with prejudice of the petition's
claims for declaratory relief and permanent injunctive
the Judgment was entered, no written motion to dismiss, for
judgment on the pleadings, or for summary judgment, was
pending. However, the State's suggestions in opposition
to the ACLU's motion for interim injunctive relief, along
with the State's argument at the hearing on the motion,
clearly reflect the State's position that the ACLU's
petition was without merit as a matter of law, even assuming
all facts therein stated were true: (i) because the Secretary
of State's obligation to review and approve a referendum
petition sample sheet is merely directory and not mandatory,
and cannot be compelled; (ii) because the Secretary of State
acted within his authority to reject the Sample Sheet because
HB 126 includes an emergency clause, and the Missouri
Constitution prohibits exercise of the power of referendum in
connection with an act that includes an emergency clause; and
(iii) because in any event, mandamus is the exclusive remedy
available to compel a State actor to do that which is
required by statute, and mandamus was not pled.
the trial court dismissed the ACLU's petition with
prejudice before any evidence was taken, we conclude that the
Judgment was in the nature of a judgment on the pleadings.
"A trial court properly grants a motion for judgment on
the pleadings if, from the face of the pleadings, the moving
party is entitled to judgment as a matter of law."
State ex rel. Nixon v. American Tobacco Co., Inc.,
34 S.W.3d 122, 134 (Mo. banc 2000). Ordinarily, that requires
us to treat all well-pleaded facts as admitted for purposes
of our review. See Emerson Electric Co. v. Marsh &
McLennan Companies, 362 S.W.3d 7, 12 (Mo. App. W.D.
2012). Here, there are no salient facts in dispute. Instead,
the only issues before us are legal questions: whether the
Secretary of State acted in excess of his statutory authority
by rejecting the Sample Sheet on constitutional grounds, and
if so, whether the ACLU is entitled to compel the Secretary
of State to approve the Sample Sheet with permanent
injunctive relief. We address these legal issues de
novo. Jones v. Fite, 207 S.W.3d 614, 616 (Mo.
banc 2006) (holding that where the issue on review is
"purely a legal one," we "review the trial
court's judgment de novo").
ACLU raises a single point on appeal. The ACLU alleges that
it was error to dismiss its petition with prejudice because:
(i) the Secretary of State had no authority to review the
Sample Sheet at this stage in the referendum process except
for its sufficiency as to form; (ii) there is no emergent
public need that justifies expediting an effective date for
any section of HB 126; and (iii) even if an emergency clause
is properly invoked as to section 188.026 of HB 126, that
does not ...