Allred v. Carnahan

372 S.W.3d 477, 2012 WL 1071226, 2012 Mo. App. LEXIS 446
CourtMissouri Court of Appeals
DecidedApril 2, 2012
DocketNo. WD 74870
StatusPublished
Cited by11 cases

This text of 372 S.W.3d 477 (Allred v. Carnahan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allred v. Carnahan, 372 S.W.3d 477, 2012 WL 1071226, 2012 Mo. App. LEXIS 446 (Mo. Ct. App. 2012).

Opinion

PER CURIAM:

Appellants Missouri Jobs with Justice and Valerie Gordon appeal from a judgment entered by the Circuit Court of Cole County denying their motion to intervene as a matter of right in an action challenging the sufficiency and fairness of the ballot titles and fiscal notes of two ballot initiative petitions concerning Missouri’s minimum wage law. For the following reasons, the judgment is affirmed in part and reversed in part.

On November 17, 2011, Respondent Victor Allred, a restaurant owner, brought an action, pursuant to § 116.190,1 challenging the fairness and sufficiency of the summary statements, the fiscal notes, and the fiscal note summaries of two initiative petitions that seek to change Missouri’s minimum wage law (“the Minimum Wage Initiative Petitions”).2 Section 116.190 gives Missouri citizens the statutory right “to challenge the official ballot title3 or the fiscal note” of initiative petitions certified by the Missouri Secretary of State by bringing an action in the Circuit Court of Cole County. § 116.190.1. As required by statute, Respondent named the Missouri Secretary of State Robin Carnahan and the Missouri State Auditor Thomas Schweich as party defendants. See § 116.190.2.

On November 29, 2011, Appellants Missouri Jobs with Justice (“MJJ”) and Valerie Gordon sought to intervene as a matter of right in Respondent’s action challenging the Minimum Wage Initiative Petitions. In their Motion to Intervene, MJJ alleged that it is a non-profit eorpo-[481]*481ration advocating for economic justice. The Motion further asserted that in 2011, MJJ contacted its attorney, Christopher Grant, and authorized him to make arrangements to submit the Minimum Wage Initiative Petitions to the Secretary of State on its behalf. Since the certification of the Minimum Wage Initiative Petitions, MJJ alleged that it has expended its financial resources and time in an effort to circulate the Minimum Wage Initiative Petitions and gather the requisite signatures to ensure the initiatives’ placement on the November 2012 ballot. Appellant Gordon alleged that she is a citizen of the State of Missouri, a taxpayer and legal voter, claiming that she was entitled to intervene because she supports and signed the Minimum Wage Initiative Petitions.

Respondent Allred filed suggestions in opposition, to which Appellants filed their reply, and both parties filed affidavits. Thereafter, a brief hearing was held where Appellants’ counsel was given an opportunity to present a short argument as to why intervention should be permitted, and subsequently, on February 22, 2012, the circuit court entered a judgment denying Appellants’ motion to intervene as of right, or, in the alternative, permissively. In doing so, the court stated that “[flor purposes of this motion, the Court accepts as true all factual allegations set forth in the affidavits submitted in this matter.” The trial court also granted Appellants leave to participate as amicus curiae and file briefing consistent with that status. Appellants timely filed their appeal.

Appellants assert that the trial court erred as a matter of law by denying Appellants’ motion for leave to intervene as defendants in Respondent’s action challenging the ballot titles and fiscal notes for the minimum Wage Initiative Petitions because Appellants are entitled to intervene as of right pursuant to Rule 52.12(a)(2). Rule 52.12(a) governs intervention as of right. Rule 52.12(a) provides:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Thus, “[i]n the absence of a statute conferring an unconditional right of intervention,” a person seeking to intervene must establish the following three elements: “(1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicant’s ability to protect the interest is impaired or impeded; and (8) that the existing parties are inadequately representing the applicant’s interest.” Id. at 127 (internal quotation omitted). “The proposed intervenor carries the burden of establishing the presence of all three elements required for intervention as a matter of right.” Id. ‘When an applicant satisfies the elements, the right to intervene is absolute, and the motion to intervene may not be denied.” McMahon v. Geldersma, 317 S.W.3d 700, 705-06 (Mo.App. W.D.2010). Alternatively, “a motion to intervene as of right under Rule 52.12(a)(2) may properly be denied if even one of these three elements is not established.” Kinney v. Schneider Nat’l Carriers, Inc., 200 S.W.3d 607, 611 (Mo.App. W.D.2006).

A motion to intervene pursuant to Rule 52.12(a) is typically simple motion practice. The procedure is set forth in Rule 52.12(c):

[482]*482A person desiring to intervene shall serve a motion upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.

The applicant files a motion to intervene setting out why it should be permitted to intervene under the Rule and, typically, would attach a proposed pleading and perhaps exhibits in support of the motion. The motion is called up for a hearing, the parties appear and present arguments, and the court makes its decision. There is seldom an evidentiary hearing. Indeed, it has been held that the Rule “should be liberally construed to permit broad intervention” and that even the requirement of a pleading may be excused. State ex rel. St. Joseph, Mo. Ass’n of Plumbing, Heating and Cooling Contrators, Inc. v. City of St. Joseph, 579 S.W.2d 804, 806 (Mo.App. W.D.1979).

Current Rule 52.12 was adopted in 1972 and has remained essentially the same since then. In 1978, our Supreme Court first held that an appeal would lie from denial of a motion to intervene of right. In doing so, the Court stated:

But where a statute or the practical necessities grant the applicant an absolute right to intervene, the order denying intervention becomes appealable. Then it may fairly be said that the applicant is adversely affected by the denial, there being no other way in which he can better assert the particular interest which warrants intervention in this instance. And since he cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an appeal therefrom.

State ex rel. Reser v. Martin, 576 S.W.2d 289, 290-91 (Mo. banc 1978) (quoting Bhd. of R.R.

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Cite This Page — Counsel Stack

Bluebook (online)
372 S.W.3d 477, 2012 WL 1071226, 2012 Mo. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allred-v-carnahan-moctapp-2012.