Joy Sweeney v. John R. ("Jay") Ashcroft, In His Official Capacity, as Missouri Secretary of State, and Legal Missouri 2022 and John Payne

• Court: Missouri Court of Appeals
• Decided: September 12, 2022
• Docket: WD85679
• Status: Published

Opinion

In the Missouri Court of Appeals Western District JOY SWEENEY, ) ) APPELLANT, ) WD85679 ) v. ) OPINION FILED: ) September 12, 2022 JOHN R. ("JAY") ASHCROFT, IN ) HIS OFFICIAL CAPACITY AS ) MISSOURI SECRETARY OF ) STATE, ) ) RESPONDENT, ) ) and ) ) LEGAL MISSOURI 2022 and JOHN ) PAYNE, ) ) RESPONDENTS. )

Appeal from the Circuit Court of Cole County, Missouri The Honorable Cotton Walker, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, Anthony Rex Gabbert, Judge, and Thomas N. Chapman, Judge

Joy Sweeney ("Sweeney") brought challenges to the Secretary of State's

("Secretary") certification of an initiative petition as Amendment 3 for inclusion on the November 8, 2022 general election ballot. Legal Missouri 2022 and John Payne

("Proponent") intervened, and were aligned with the Secretary in defending certification of

the initiative petition. Following a trial, the circuit court entered a judgment on the merits

pursuant to Rule 73.01(b),1 finding that Sweeney's lawsuit failed for want of jurisdiction

because Sweeney failed to put on evidence to establish her standing to challenge the

Secretary's certification of the initiative petition. The judgment also determined the

substantive merits of Sweeney's challenges, and ruled in favor of the Secretary and

Proponent on Sweeney's claims. Sweeney filed this appeal.

We reverse the circuit court's judgment to the extent that it granted Rule 73.01(b)

motions to find that Sweeney did not prove she had standing. We affirm the circuit court's

judgment in favor of the Secretary and the Proponent and against Sweeney on the merits

of Sweeney's challenges to the Secretary's certification of the initiative petition. As a result,

we hold that the Secretary's certification of the initiative petition was proper, permitting

the initiative petition to be placed on the ballot for the November 8, 2022 general election.

Factual and Procedural Background

Proponent filed a sample form of an initiative petition with the Secretary on or about

August 27, 2021, seeking to amend the Missouri Constitution to legalize the recreational

use and possession of marijuana in certain circumstances, and to authorize steps to relieve

persons of the criminal consequences of past marijuana use and possession made lawful by

1 All Rule references are to Missouri Court Rules, Volume I -- State 2022 unless otherwise noted.

2 the amendment. The initiative was identified by the Secretary as Initiative Petition No.

2022-59, and was given the title "Marijuana Use and Expunging Cannabis Related

Criminal Records" (hereinafter "Initiative Petition").2 On October 6, 2021, the Secretary

approved the form of the Initiative Petition and certified a ballot title for circulation.

On or about May 8, 2022, Proponent submitted signatures of registered voters in

support of the Initiative Petition. The Secretary thereafter sent copies of signature pages

to various local election authorities to verify that the persons whose names were listed as

signers on the submitted pages were registered voters in their claimed counties and

congressional districts. The Secretary determined after this process that some signers

designated as unregistered voters by local election authorities were, in fact, registered

voters, and treated those signatures as valid. The Secretary then determined that

Congressional District numbers 1, 2, 3, 5, 6, and 7 had sufficient signatures to satisfy

constitutional requirements for certification of the Initiative Petition, and that

Congressional District numbers 4 and 8 did not have sufficient signatures to satisfy

constitutional requirements. Because the Secretary determined that a sufficient number of

valid signatures in favor of the Initiative Petition had been secured in six of Missouri's eight

Congressional Districts, the Secretary issued a Certificate of Sufficiency for the Initiative

Petition on August 9, 2022, permitting the matter to be placed on the ballot for the

November 8, 2022 general election as Amendment 3.

2 The Initiative Petition is lengthy. The Initiative Petition can be found on the Secretary's website at https://www.sos.mo.gov/CMSImages/Elections/Petitions/2022-059.pdf

3 On August 19, 2022, Sweeney filed a petition in the Circuit Court of Cole County,

Missouri pursuant to section 116.200.1,3 challenging the Secretary's certification of the

Initiative Petition for placement on the November 8, 2022 general election ballot ("Election

Challenge"). Sweeney's petition alleged that Sweeney was a "citizen, legal voter, resident,

and taxpayer of the State of Missouri." Sweeney's petition alleged that the Secretary

improperly certified the Initiative Petition for two reasons: (i) because the Secretary

violated section 116.130 by certifying and counting signatures that were marked through

by local election authorities, and absent this, the Initiative Petition would not have had a

sufficient number of valid signatures to permit its certification; and (ii) because the

Initiative Petition contains multiple subjects in violation of the single subject requirement

described in article III, section 50 of the Missouri Constitution. Sweeney's petition asked

the circuit court to enjoin the Secretary from certifying the Initiative Petition for placement

on the ballot for the November 8, 2022 general election.4

Proponent was granted leave to intervene in the Election Challenge on September

1, 2022, and filed an answer to Sweeney's petition on September 2, 2022, aligning with the

Secretary in defending certification of the Initiative Petition. Proponent's answer denied

that Sweeney was a citizen, legal voter, resident, and taxpayer of the State of Missouri. The

3 All statutory references are to RSMo 2016 as supplemented through August 27, 2021, the date the sample form of the Initiative Petition was filed, unless otherwise noted. Section 116.200.1 provides that "[a]fter the secretary of state certifies a petition as sufficient or insufficient, any citizen may apply to the circuit court of Cole County to compel him to reverse his decision. The action must be brought within ten days after the certification is made. All such suits shall be advanced on the court docket and heard and decided by the court as quickly as possible." 4 Section 116.200.2 provides that "[i]f the court decides the petition is sufficient, the secretary of state shall certify it as sufficient and attach a copy of the judgment. If the court decides the petition is insufficient, the court shall enjoin the secretary of state from certifying the measure and all other officers from printing the measure on the ballot."

4 Secretary filed an answer to Sweeney's petition on September 6, 2022. The Secretary's

answer denied on information and belief that Sweeney was a citizen, legal voter, resident,

and taxpayer of the State of Missouri. The circuit court expedited resolution of the Election

Challenge as required by section 116.200.1.

Following an abbreviated trial to the court on the afternoon of September 8, 2022,

the circuit court entered its judgment on September 9, 2022 ("Judgment"). The Judgment

reflected the circuit court's grant of the Secretary's and Proponent's motions for directed

verdict at the close of Sweeney's case ("Rule 73.01(b) Motions")5 because Sweeney failed

to put on any evidence that she is a "Missouri resident," and thus failed to prove that she

had standing to bring the Election Challenge under section 116.200.1.6 The Judgment went

on to explain that immediately after the Rule 73.01(b) Motions were made, Sweeney orally

moved to reopen the evidence to permit her to put on testimony establishing Sweeney's

standing to bring a section 116.200.1 challenge. The Judgment explained that the Secretary

and Proponent objected to Sweeney's motion to reopen the evidence. Direct and cross-

examination testimony was then taken from Sweeney as an offer of proof on the issue of

her standing to file a section 116.200.1 action. The circuit court took the Rule 73.01(b)

Motions and the request to reopen the evidence under advisement. The Judgment sustained

the Secretary's and Proponent's objections to Sweeney's motion to reopen the evidence, and

5 In a court tried case, a motion for directed verdict at the close of a plaintiff's case is not appropriate and is treated as a motion pursuant to Rule 73.01(b) for "a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief." See Radmacher v. Dir. of Revenue, 405 S.W.3d 607, 609 n. 2 (Mo. App. W.D. 2013); Williams v. Dir. of Revenue, 335 S.W.3d 70, 72 n. 1 (Mo App. W.D. 2011). The circuit court's Judgment reflects that it treated the motions for directed verdict as motions pursuant to Rule 73.01(b). 6 As noted, supra, in footnote 3, section 116.200.1 permits "any citizen" to file a challenge to the secretary of state's certification of an initiative petition. The Rule 73.01(b) Motions presumed the phrase "any citizen" means "Missouri resident." We address this subject, infra.

5 granted the Rule 73.01(b) Motions, and entered judgment against Sweeney on the merits

on the grounds that Sweeney failed to put on evidence that she had standing. The Judgment

expressly noted that in granting the Rule 73.01(b) Motions, the circuit court had not relied

on or considered the offer of proof testimony.

The Judgment further noted that "since the issues raised in this matter are of

significant importance and due to the expedited nature of a Section 116.200, RSMo

challenge" it was appropriate for the circuit court to "to enter . . . supplemental findings of

fact, [and] conclusions of law as a part of the ruling herein" to determine the substantive

merits of Sweeney's Election Challenge. The Judgment made extensive findings of fact

and conclusions of law on the merits of Sweeney's claims, and held that the Initiative

Petition did not violate the single subject requirement set forth in article III, section 50 of

the Missouri Constitution, and that the Secretary properly certified that the Initiative

Petition had sufficient signatures to place the measure on the ballot for the November 8,

2022 general election as Amendment 3.

Sweeney immediately filed this appeal late in the afternoon on September 9, 2022,

pursuant to section 116.200.3.7

7 Section 116.200.3 provides that “[w]ithin ten days after a decision is rendered [on a petition challenging the secretary of state's certification of an initiative petition as either sufficient or insufficient], any party may appeal it to the supreme court.” Under analogous circumstances, our courts have concluded that an attempt by statute to extend exclusive jurisdiction to the Supreme Court to entertain an appeal is of no effect unless the subject matter of the suit is within the scope of the Supreme Court's exclusive jurisdiction as provided in the Missouri Constitution. See Boeving v. Kander, 493 S.W.3d 865, 872-73 (Mo. App. W.D. 2016). For reasons hereinafter explained, “[t[his appeal does not raise any issue which would trigger the Supreme Court's exclusive appellate jurisdiction. Therefore, [section 116.200.3] cannot be read to authorize a direct appeal to the Supreme Court.” Id. at 873.

6 Expedited Appeal

Pursuant to section 115.125.3 RSMo. Supp 2018, "[n]o court shall have the

authority to order an . . . issue be placed on the ballot less than eight weeks before the date

of the election." In this appeal, we are being asked to determine whether the Secretary

should certify the Initiative Petition for placement on the ballot for the November 8, 2022

general election, or be enjoined from certifying the Initiative Petition, with all other officers

being commensurately enjoined from printing the measure on the ballot. Section

116.200.2; section 116.200.3. September 13, 2022 is thus the last date that this or any court

will have the authority to order the Initiative Petition to be placed on the ballot for the

November 8, 2022 general election. Section 115.125.3. We have therefore substantially

expedited the disposition of this appeal.

Appellate Jurisdiction

This "'Court has an obligation, acting sua sponte if necessary, to determine its

authority to hear the appeals that come before it.'" Maly Commercial Realty, Inc. v. Maher,

582 S.W.3d 905, 910 (Mo. App. W.D. 2019) (quoting Glasgow Sch. Dist. v. Howard Cnty.

Coroner, 572 S.W.3d 543, 547 (Mo. App. W.D. 2019) (citations and internal quotations

omitted)). Our authority to hear appeals is influenced by whether the issues raised are ripe

for review, and by whether the issues raised are subject to the exclusive appellate

jurisdiction vested in the Supreme Court by article V, section 3 of the Missouri

Constitution.

The power of the initiative is expressly reserved to the people in article III, section

49 of the Missouri Constitution. "When courts are called upon to intervene in the initiative

7 process, they must act with restraint, trepidation and a healthy suspicion of the partisan

who would use the judiciary to prevent the initiative process from taking its course."

Brown v. Carnahan, 370 S.W.3d 637, 645 (Mo. banc 2012) (quoting Missourians to

Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990)). Respectful

of this restraint, the judiciary's authority to determine pre-election challenges to initiative

petition ballot measures is extremely limited. "Before the people vote on an initiative,

courts may consider only those threshold issues that affect the integrity of the election

itself, and that are so clear as to constitute a matter of form." Id. (quoting United Gamefowl

Breeders Ass'n of Missouri v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000)). "As such,

when initiative petitions are challenged, this Court's primary duty is to determine 'whether

the constitutional requirements and limits of power, as expressed in the provisions relating

to the procedure and form of initiative petitions, have been regarded.'" Id. (quoting

Missourians to Protect the Initiative Process, 799 S.W.2d at 827).

Sweeney's pre-election challenges to the Initiative Petition, which argue that the

measure violates the single subject requirement of article III, section 50 of the Missouri

Constitution, and that insufficient valid signatures were collected to authorize certification

of the measure, satisfy this standard, and are ripe for our review.8 Boeving v. Kander, 496

S.W.3d 498, 503-504 (Mo. banc 2016) (addressing pre-election challenges that insufficient

8 Though Sweeney's pre-election challenges are authorized because they address compliance with statutory or constitutional provisions relating to the procedure and form of initiative petitions, our Opinion should not be read to suggest that all such challenges must be initiated pre-election. See, e.g., Dotson v. Kander, 464 S.W.3d 190, 194 (Mo. banc 2015) (observing that "[i]n contrast to pre-election challenges under section 116.190, chapter 115 allows registered voters to contest '[t]he result of any election on any question' after an election has been held"); Knight v. Carnahan, 282 S.W.3d 9, 18 (Mo. App. W.D. 2009) (noting that the single subject requirement "applies to [initiative] petitions both before and after Missouri voters have approved a measure.") (citing United Gamefowl, 19 S.W.3d at 139).

8 valid signatures had been collected to authorize the secretary of state to certify an initiative

petition, and that the measure violated article III, section 50 of the Missouri Constitution

because it sought to amend or create more than one article of the constitution); Ritter v.

Ashcroft, 561 S.W.3d 74, 85-86 (Mo. App. W.D. 2018) (holding that "[c]hallenges to an

initiative petition on the basis that it 'contain[s] more than one subject and matters properly

connected therewith' are appropriately addressed prior to the election at which the measure

is to be submitted to voters") (citing Missourians to Protect the Initiative Process, 799

S.W.2d at 828). As such, it is also appropriate for us to entertain Sweeney's challenge on

appeal to the entry of Judgment against her on the merits pursuant to Rule 73.01(b) on the

basis that she lacked standing to pursue her pre-election challenges.

Sweeney's pre-election challenges to the Initiative Petition do not implicate the

Missouri Supreme Court's exclusive jurisdiction, because they do not challenge the

substantive constitutionality of any law related to the initiative process, and instead address

only whether the Initiative Petition complied with constitutional and statutory provisions

relating to the procedure and form of initiative petitions. Cf. Boeving, 496 S.W.3d at 503-

504 (holding that although challenges to the sufficiency of collected signatures and to

whether an initiative petition violated the prohibition against creating or amending more

than one article of the constitution were not, on their own, subject to the Supreme Court's

exclusive jurisdiction, a third issue in the case raised a substantive constitutional question

that was subject to the Court's exclusive jurisdiction, requiring all issues to be submitted to

the Court).

As such, this Court has jurisdiction to entertain Sweeney's appeal.

9 Standard of Review

"The standard of review for a bench-tried civil case is that set forth in Murphy v.

Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)."9 Stander v. Szabados, 407 S.W.3d 73, 78

(Mo. App. W.D. 2013). We will affirm the circuit court's Judgment unless there is no

substantial evidence to support it, it is against the weight of the evidence, or it erroneously

declares or misapplies the law. Id. We view the evidence and reasonable inferences that

may be drawn therefrom in the light most favorable to the Judgment, disregarding evidence

and inferences to the contrary. Id.

Analysis

Sweeney raises four points on appeal. Sweeney's first and second points collectively

allege that the circuit court erred in entering Judgment on the merits pursuant to Rule

73.01(b) on the basis that she lacked standing to pursue the Election Challenge because it

abused its discretion by refusing her request to reopen the evidence, because the excluded

evidence established as a matter of law that she is a "citizen" with standing to pursue a

challenge pursuant to section 116.200.1, and because the Rule 73.01(b) Motions alleged

that Sweeney had to prove she was a Missouri resident, when section 116.200.1 provides

that "any citizen" can bring a challenge. Sweeney's third point alleges that the circuit court

erred in refusing to enjoin the Secretary from certifying the Initiative Petition because the

Secretary independently determined that numerous signers on the Initiative Petition were

registered voters after local election authorities had determined to the contrary, and that the

9 The Judgment is, in every respect, a judgment on the merits, both under Rule 73.01(b), and because of the circuit court's findings and conclusions determining the merits of the substantive challenges raised in Sweeney's Election Challenge.

10 Secretary was prohibited from doing so by section 116.140. Sweeney's fourth point alleges

that the circuit court erred in refusing to enjoin the Secretary from certifying the Initiative

Petition because the Initiative Petition violates the single subject requirement of article III,

section 50 of the Missouri Constitution.

We address points one and two together, and then points four and three.

I

The Circuit Court Abused its Discretion in Refusing to Permit Sweeney to Reopen the Evidence, and Committed Legal Error in Granting the Rule 73.01(b) Motions because they Relied on an Erroneous Legal Standard to Establish Standing to Bring a Section 116.200.1 Challenge

Sweeney first and second points on appeal argue that the circuit court abused its

discretion when it refused her request to reopen the evidence, and that the Rule 73.01(b)

Motions were erroneously granted because they relied on a legal standard to establish

standing under section 116.200.1 that is inconsistent with the statute. We agree.

A

After Sweeney concluded her case-in-chief at trial, the Secretary and Proponent

made oral Rule 73.01(b) Motions seeking judgment in their favor on the merits10 because

Sweeney failed to put on any evidence that she is a "Missouri resident." The oral Rule

73.01(b) Motions thus presupposed, without argument or analysis, that the phrase "any

citizen" in section 116.200.1 means "Missouri resident," and that in the absence of evidence

that Sweeney is a Missouri resident, Sweeney did not have standing to challenge the

Secretary's certification of the Initiative Petition as sufficient.

10 See footnote 5, supra.

11 After the Rule 73.01(b) Motions were made, Sweeney's counsel immediately

requested to reopen the evidence so Sweeney could testify about her standing to bring a

section 116.200.1 challenge. The Secretary and Proponent objected. Sweeney's counsel

made an offer of proof through direct examination of Sweeney, who appeared by WebEx

within minutes of the request to reopen the evidence. Sweeney was cross-examined by the

Secretary and Proponent during the offer of proof. The circuit court took the Rule 73.01

Motions and Sweeney's request to reopen the evidence under advisement, and did not rule

either until it entered its Judgment. Following the offer of proof, the Secretary and

Proponent rested without presenting evidence, and the parties proceeded with closing

arguments.

The circuit court's written Judgment entered the following day sustained the

Secretary's and Proponent's objections to Sweeney's request to reopen, and granted the Rule

73.01(b) Motions, entering judgment on the merits against Sweeney because she failed to

put on evidence to establish her standing to pursue a section 116.200.1 challenge. The

Judgment expressly noted that the circuit court did not rely on or consider the offer of proof

testimony in granting the Rule 73.01(b) Motions. Despite granting the Rule 73.01 Motions,

the Judgment also made extensive findings of fact and conclusions of law to determine the

merits of Sweeney's substantive claims in the Election Challenge.

"Generally, the decision to allow a party to reopen [the evidence] is within the sound

discretion of the trial court." In re Estate of Mapes, 738 S.W.2d 853, 855 (Mo. banc 1987).

However, "'[a] litigant should not be precluded from offering additional evidence simply

because counsel has rested his case.'" LaFevers v. Clothiaux, 403 S.W.3d 653, 658 (Mo.

12 App. S.D. 2012) (quoting Conley v. Dee, 246 S.W.2d 385, 387 (Mo. App. St.L.D. 1952)).

"[W]hen there is no inconvenience to the Court or unfair advantage to one of the parties,

there is an abuse of discretion . . . upon a refusal to reopen a case and permit the introduction

of material evidence, that is evidence that would substantially affect the merits of the action

and perhaps alter the Court's decision." Mapes, 738 S.W.2d at 855 (quoting Pride v.

Lamberg, 366 S.W.2d 441, 445 (Mo. 1963)).

It is beyond contest that the evidence Stewart sought to introduce by reopening the

evidence was material and would have altered the circuit court's grant of the Rule 73.01(b)

Motions. That is because the Rule 73.01(b) Motions were granted by the circuit court

without consideration of the offer of proof testimony, and solely because Sweeney

presented no evidence of her status as a "Missouri resident," (the purported standard for

standing posited by the Rule 73.01(b) Motions), during her case-in-chief.

In addition, there is no basis in the record to conclude that there would have been

either inconvenience to the circuit court or unfair advantage to Sweeney by permitting

Sweeney to reopen the evidence. The circuit court was not inconvenienced "given the fact

that the request [to reopen] was made prior to the granting of [the Rule 73.01(b) Motions]."

Mapes, 738 S.W.2d at 856. Sweeney was available to testify, and did in fact testify, by

WebEx within minutes of the Rule 73.01(b) Motions being made, as demonstrated by her

offer of proof. After the offer of proof, the Rule 73.01(b) Motions and the pending request

to reopen the evidence were taken under advisement, and the parties proceeded to closing

arguments, where the merits of the substantive issues raised in Sweeney's Election

Challenge were the primary focus. Though the circuit court granted the Rule 73.01(b)

13 Motions in its Judgment, the circuit court's Judgment also made extensive findings of fact

and conclusions of law on the merits of Sweeney's substantive challenges to the Secretary's

certification of the Initiative Petition. Had the circuit court permitted Sweeney to reopen

the evidence, it is apparent that decision would have had a nearly imperceptible impact on

the proceedings.

Moreover, it is relevant that this was an abbreviated trial in a substantially

expeditated case. It is plain from the record that the parties had been encouraged to

streamline the contested issues they expected the circuit court to entertain at trial to enhance

the circuit court's ability to enter a judgment less than 24 hours after trial, in order to afford

the parties a fighting chance to pursue and complete appellate review before the statutory

deadline of September 13, 2022 imposed by section 115.125.3. We recognize that given

the Secretary's and Proponent's answers denying the allegation in Sweeney's petition that

she is a "citizen, legal voter, resident, and taxpayer of the State of Missouri," Sweeney was

on notice that her standing to pursue a section 116.200.1 was technically in issue. But, as

the Supreme Court held in Mapes, "[i]f a plaintiff, by mistake or inadvertence, fails to

produce sufficient evidence at trial to prove his claim, in a situation where the proof seems

to be available," it is an abuse of discretion to refuse the plaintiff's request to reopen the

evidence. 738 S.W.2d at 856. Under the circumstances in this case, it was an abuse of

discretion for the circuit court to refuse Sweeney's request to reopen the evidence.

Our conclusion is consistent with the result reached by our Supreme Court in Mapes,

where the Court found it to be an abuse of discretion to refuse a plaintiff's request to reopen

evidence where the request was raised immediately after motions for directed verdict were

14 made and before they were ruled, where necessary witnesses were readily available to

testify, and where the excluded evidence would have avoided a directed verdict. 738

S.W.2d at 855-856. Similarly, in Moss v. Greyhound Lines, Inc., 607 S.W.2d 192, 195-96

(Mo. App. E.D. 1980), the Eastern District concluded that it was an abuse of discretion to

refuse a plaintiff's request to reopen evidence where the request was made immediately

after the trial court denied the plaintiff's request to reconsider the grant of defendant's oral

motion for directed verdict, where the record established the evidence was material, and

where "no undue advantage would have accrued to the [plaintiff] if the court would have

allowed him to reopen his case[,] [as] [a]ll parties were present, the witness was

immediately available and . . . there was no evidence of any inconvenience to the court."

And in Arrow Financial Services, LLC, v. Collier, 323 S.W.3d 827, 829 (Mo. App. E.D.

2010), the trial court's refusal to reopen the evidence was found to be an abuse of discretion

where the "request to reopen evidence to present evidence of the attorneys' fees owed was

made within minutes after the close of the evidence[,] [t]here would be no inconvenience

to the Court to allow presentation of evidence of attorneys' fees[,] and there would be no

unfair advantage to [the party who requested to reopen]." Finally, in LaFevers, 403 S.W.3d

at 658-659, the Southern District found a trial court's refusal to reopen the evidence to be

an abuse of discretion where "excluded deposition testimony was material and could have

altered the jury's decision[,] . . . [p]laintiff would have achieved no unfair advantage by

reopening her case to present [the] deposition testimony[,] . . . [and] [p]laintiff's request to

reopen her evidence to introduce portions of [the] deposition would not have

inconvenienced the court."

15 Having found that it was an abuse of discretion to refuse Sweeney's request to

reopen the evidence, we are left to determine the remedy for the trial court's error. In the

cases cites above, the excluded evidence was material to a plaintiff's substantive claims on

their merits, requiring reversal and remand for a new trial, or for additional findings, so the

fact-finder could consider the excluded evidence to resolve contested claims. Mapes, 738

S.W.2d at 856; LaFevers, 403 S.W.3d at 659-660; Arrow Financial Services, LLC, 323

S.W.3d at 829; Moss, 607 S.W.2d at 196.

Here, in stark contrast, the excluded evidence was not relevant to determining the

merits of Sweeney's Election Challenge claims, and instead was relevant only to the

threshold issue of Stewart's standing to pursue her substantive claims pursuant to section

116.120.1. "Standing is a question of law, which is reviewed de novo." Manzara v. State,

343 S.W.3d 656, 659 (Mo. banc 2011) (citation omitted). As such, we are permitted to

review the circuit court's grant of the Rule 73.01(b) Motions for legal error, without

remanding this matter to consider the excluded evidence. If the circuit court did commit

legal error in granting the Rule 73.01(b) Motions, there is also no need to remand this

matter to require the circuit court to determine the merits of Sweeney's Election Challenge,

as the Judgment includes the circuit court's findings of fact, conclusions of law, and

judgments on the merits of Sweeney's substantive claims.

We turn, therefore, to addressing whether the circuit court committed legal error by

granting the Rule 73.01(b) Motions. We conclude that it did.

16 B

Section 116.200.1 provides that "any citizen may apply to the circuit court of Cole

County to compel [the secretary of state] to reverse" a decision to certify an initiative as

sufficient or insufficient. (Emphasis added.) The Rule 73.01(b) Motions granted by the

circuit court argued that Sweeney failed to put on evidence that she was a "Missouri

resident," and thus failed to prove that she had standing under section 116.200.1. On

appeal, the Secretary and Proponent continue to argue that "Missouri resident" is the proper

legal standard for determining standing under section 116.200.1, even though section

116.200.1 uses the phrase "any citizen."

The term "citizen" is not defined in Chapter 116, though there is nothing about the

language or tenor of section 116.200.1 to suggest that the legislature intended to narrowly

or artificially restrain the scope of the term. Our primary responsibility in interpreting a

statute is "to determine legislative intent from the language of the statute and to give effect

to that intent." Balloons Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825

(Mo. banc 2014) (citation omitted). "Absent a statutory definition, words used in statutes

are given their plain and ordinary meaning with help, as needed, from the dictionary." Id.

(quoting Am. Healthcare Mgmt., Inc. v. Dir. of Revenue, 984 S.W.2d 496, 498 (Mo. banc

1999)).

WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 411 (1961)

defines "citizen" as: "an inhabitant of a city or town . . . "; "a member of a state . . ."; and

"a native or naturalized person of either sex who owes allegiance to a government and is

entitled to reciprocal protection from it and to enjoyment of the rights of citizenship."

17 Other authorities note that the term "citizen" is not a term of exact meaning. For example,

14 C.J.S. Citizens section 2 (August 2022 Update) observes that the term "citizen" is "a

term capable of more meanings than one and has been variously defined." The same

authority notes:

In its primary sense, the term "citizen" signifies a person who is vested with the freedom and privileges of a city as distinguished from a foreigner or a person not entitled to its franchises. It may also be properly defined as an inhabitant of a city or a townsperson. In a larger sense, the term "citizen" denotes a person who, as a member of a nation or of a body politic of a sovereign state, owes allegiance to, and may claim reciprocal protection from, its government. It is also sometimes defined as a person who is domiciled in a country, and who is a citizen, although neither native or naturalized, in the sense that he or she takes his or legal status from such country.

. . . A "citizen," pursuant to American law, is . . . variously defined as a person who has a right to vote for representatives in Congress and other public officers, and who is qualified to fill offices; one of the sovereign people; a constituent member of the sovereignty, synonymous with the people; a member of the civil state, entitled to all its privileges; and a free inhabitant born within the United States or naturalized under the laws of Congress. In a political sense, "citizen" may also be defined as a person who has the rights and privileges of a citizen of a state or of the United States.

The particular meaning of the word "citizen" is frequently dependent on the context in which it is found and must always be taken in the sense which best harmonizes with the subject matter in which it is used. A person may be considered a citizen for some purposes and not a citizen for other purposes.

Id.

Plainly, the term "citizen" is not readily susceptible to a single, settled dictionary

meaning, and is instead a term with varied accepted meanings depending on the context in

which the term is used. However, we need not determine the outer parameters of the

legislature's intended meaning of the term "citizen" as used in section 116.200.1. We need

18 only determine whether the legislature intended "citizen" to mean (and thus be limited to)

"Missouri resident."

The Rule 73.01(b) Motions offered no explanation for equating "citizen" with

"Missouri resident," and never mentioned the term "citizen." The Secretary's and

Proponent's arguments on appeal presuppose that "citizen" means "Missouri resident,"

citing no authority to support this critical presumption, nor any explanation for why the

legislature did not simply use the phrase "Missouri resident" had that been their intent.

We reject the essential premise of the Rule 73.01(b) Motions, which equates the

term "citizen" as used in section 116.200.1 with "Missouri resident." Construing the term

"citizen" in section 116.200.1 to mean only "Missouri resident," or to even require that one

be a "Missouri resident," is not consistent with the multiple, common definitions of

"citizen" noted above. Equating "citizen" with "Missouri resident" artificially constrains

the term "citizen," and in the process, disregards Missouri jurisprudence (limited as it is)

addressing the meaning of "citizen." For example, in State v. Fairlamb, 25 S.W. 895, 899

(Mo. 1894), our Supreme Court observed that "[a] citizen is a person born in the United

States." (quoting 1 Bouv. Law Dict.). The Court also acknowledged that "citizen" has

been defined as "'[o]ne who owes to government allegiance, service, and money by way of

taxation, and to whom the state in turn grants and guaranties liberty of person and of

conscience, the right of acquiring and possessing property, of marriage and social relations,

of suit and defense, and security in person, estate, and reputation.'" Id. (quoting 3 Am. &

Eng. Enc. Law, 242). And, the Court noted that pursuant to "the fourteenth amendment of

the constitution of the United States, 'all persons born or naturalized in the United States,

19 and subject to the jurisdiction thereof," are expressly declared to be 'citizens of the United

States and of the state wherein they reside,'" demonstrative of the fact that dual citizenship

is both possible and common. Id. (quotation omitted).

These definitions of "citizen" are much broader than, and cannot be reconciled with,

defining the term "citizen" as used in section 116.200.1 to mean "Missouri resident." Even

if "citizen" as used in section 116.200.1 were to be interpreted to mean "Missouri citizens,"

(an issue we need not resolve), it cannot be said that "Missouri citizen" means "Missouri

resident." See, e.g., Loftus v. Lee, 308 S.W.2d 654, 657 (Mo. 1958) (citing Douglas v. New

York, New Haven R. Co., 279 U.S. 377, 387 (1929) which held that "[a] distinction of

privileges according to residence may be based upon rational considerations and has been

upheld by this Court, emphasizing the difference between citizenship and residence . . .

.") (emphasis added)). See also, 14 C.J.S. Citizens section 13 (August 2022 Update)

(observing that "[t]here is some confusion in legal nomenclature with respect to the terms

'citizen,' 'inhabitant,' and 'resident.' 'Citizen' is not necessarily synonymous, or a term

convertible with 'inhabitant' or 'resident,' and, in some instances, the distinction is

important").

We therefore conclude that it was legally erroneous for the circuit court to grant the

Rule 73.01(b) Motions, as in doing so, the circuit court ignored the plain language of

section 116.200.1, and instead credited the Secretary's and Proponent's reliance on an

incorrect legal standard for determining standing pursuant to 116.200.1. Because it was

also (as we have explained) an abuse of discretion for the circuit court to refuse to reopen

20 the evidence to accept Sweeney's offer of proof testimony, it was error to enter Judgment

against Sweeney on the merits by granting the Rule 73.01(b) Motions.11

Sweeney's first and second points on appeal are granted. The Judgment is reversed

to the extent it granted the Rule 73.01(b) Motions and ruled on the merits in favor of the

Secretary and Proponent on the basis that Sweeney did not have standing to pursue the

Election Challenge.

We now turn our attention to the Judgment's findings and conclusions which entered

judgment in favor of the Secretary and Proponent on the merits of Sweeney's substantive

challenges to the Secretary's certification of the Initiative Petition. We first address point

four on appeal, which involves Sweeney's single subject challenge to the Initiative Petition.

We then address point three on appeal, which involves Sweeney's contention that the

Secretary had no authority to disregard a local election authority's determination that a

signature is invalid because the signer is not a registered voter.

11 Sweeney's offer of proof included testimony that she is a United States citizen; that she owns and maintains a Missouri residence; that she is a Missouri resident; that she is registered to vote in Missouri; and that she has spent most of her time during 2022 in the state of Missouri. On cross-examination, Sweeney testified that she works regularly in Washington D.C., and also owns homes in Virginia and California. Sweeney also testified on cross-examination that she has served on the Jefferson City, Missouri school board, and on "numerous other state and local boards, Chamber of Commerce, Capital Region Medical Center, Rotary, [and] Big Brother Big Sisters." Sweeney's cross-examination illuminated that the Secretary and Proponent were intent only on challenging Sweeney's status as a Missouri resident, consistent with the Rule 73.01(b) Motions. Beyond contesting Sweeney's status as a Missouri resident, neither the Secretary nor Proponent has argued that Sweeney's other connections with the state of Missouri about which she testified (that she is a Missouri property owner, taxpayer, registered voter, and community leader, and a United States citizen) are insufficient to make her a "citizen" for purposes of section 116.200.1. Though it would not be proper for us to determine the credibility of this testimony, we need not and do not do so, as it would be equally improper for us to credit the Secretary and Proponent with arguments they have not made.

21 II

The Initiative Petition does not Violate the Single Subject Requirement

Sweeney's fourth point on appeal alleges that the Initiative Petition violates the

single subject requirement set forth in article III, section 50 of the Missouri Constitution,

which provides, in pertinent part, that "[p]etitions for constitutional amendments shall not

contain more than one . . . subject and matters properly connected therewith."12 Sweeney's

petition contended that the Initiative Petition violates the single subject requirement

because it legalizes the recreational use and possession of marijuana under certain

circumstances and authorizes relief from the criminal consequences of certain past

marijuana related offenses through expungement and release from incarceration, probation

or parole. Sweeney petition thus complained that the Initiative Petition has both a

prospective and retroactive impact that violates the single subject requirement's prohibition

against multiple, unrelated matters being contained in a proposed constitutional

amendment. At trial and on appeal, Sweeney highlighted additional provisions of the

Initiative Petition beyond those raised in her petition in an effort to bolster her contention

that the Initiative Petition violates the single subject requirement.

The circuit court rejected Sweeney's single subject challenge. The circuit court did

not commit legal error in doing so.

The Initiative Petition proposes to amend article XIV of the Missouri Constitution

(addressing medical marijuana use) by modifying section 1 and adding a new section 2.

12 Article XII, section 2(b) of the Missouri Constitution repeats the single subject requirement for proposed constitutional amendments.

22 The official ballot title and fair ballot language for the Initiative Petition summarize the

proposed amendment to article XIV of the Missouri Constitution as follows:

Official Ballot Title:

Do you want to amend the Missouri Constitution to:

• remove state prohibitions on purchasing, possessing, consuming, using, delivering, manufacturing, and selling marijuana for personal use for adults over the age of twenty-one; • require a registration card for personal cultivation with prescribed limits; • allow persons with certain marijuana-related non-violent offenses to petition for release from incarceration or parole and probation and have records expunged; • establish a lottery selection process to award licenses and certificates; • issue equally distributed licenses to each congressional district; and • impose a six percent tax on the retail price of marijuana to benefit various programs?

State governmental entities estimate initial costs of $3.1 million, initial revenues of at least $7.9 million, annual costs of $5.5 million, and annual revenues of at least $40.8 million. Local governments are estimated to have annual costs of at least $35,000 and annual revenues of at least $13.8 million.

Fair Ballot Language:

A "yes" vote will amend the Missouri Constitution to remove state prohibitions on the purchase, possession, consumption, use, delivery, manufacture, and sale of marijuana for personal use for adults over the age of twenty-one.

The amendment would also allow individuals with certain marijuana-related offenses to petition for release from prison or parole and probation and have their records expunged; along with imposing a six percent tax on the retail price of recreational marijuana.

A "no" vote will not amend the Missouri Constitution and the sale and use of marijuana for recreational purposes will remain prohibited under current law. Medical marijuana would remain unchanged.

23 If passed, this measure will impose a 6 percent tax on the retail price of recreational marijuana.

As Sweeney correctly notes, the Initiative Petition prospectively authorizes the lawful use

and possession of recreational marijuana in certain circumstances. And the Initiative

Petition authorizes relief from past criminal consequences by permitting those with

marijuana related offenses that would be prospectively lawful under the amendment to

petition for expungement or release from incarceration, probation or parole. The issue is

whether the constitutional amendment proposed by the Initiative Petition "contain[s] more

than one . . . subject and matters properly connected therewith" because of its prospective

and retroactive impact on decriminalizing the recreational use and possession of marijuana

in certain circumstances. Art. III, section 50, Missouri Constitution. We conclude that it

does not.

The purpose of the single subject requirement is settled:

[T]he purpose of the prohibition on multiple subjects in a single ballot proposal is to prevent “logrolling,” a practice familiar to legislative bodies whereby unrelated subjects that individually might not muster enough support to pass are combined to generate the necessary support. The prohibition is intended to discourage placing voters in the position of having to vote for some matter which they do not support in order to enact that which they earnestly support. The single subject matter rule is the constitutional assurance that within the range of a subject and related matters a measure must pass or fail on its own merits.

Missourians to Protect the Initiative Process, 799 S.W.2d at 830 (internal citation omitted)

(citing State ex rel. Callaghan v. Maitland, 246 S.W. 267, 272 (Mo. banc 1922)); Ritter,

561 S.W.3d at 85. To establish that the single subject requirement has been violated

requires more, however, than a simple demonstration that an initiative petition effects

24 multiple, discrete changes. Instead, "[a] measure may effect multiple changes yet have a

single subject if all its provisions are connected with a central controlling purpose."13

Knight v. Carnahan, 282 S.W.3d 9, 18 (Mo. App. W.D. 2009), (citing United Gamefowl,

19 S.W.3d at 140). "In addressing a 'single subject' challenge, we read an initiative petition

in a manner favoring its validity." Ritter, 561 S.W.3d at 86. Our Supreme Court has

expressly directed that:

When reviewing a single subject challenge to an initiative petition, this Court must liberally and non-restrictively construe the petition in such a way that the provisions connected with or incident to the central purpose of the proposal are harmonized and not treated as separate subjects. A proposal may amend several articles in the constitution so long as all proposals are germane to a single purpose. In reviewing multiple subject claims, this Court "must scrutinize the proposal to see if all matters included relate to a readily identifiable and reasonably narrow central purpose."

Comm. For A Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503, 511 (Mo. banc 2006)

(internal citations omitted) (citing and quoting Missourians to Protect the Initiative

Process, 799 S.W.2d at 830-31); see Ritter, 561 S.W.3d at 86 (quoting Comm. For A

Healthy Future, Inc., 201 S.W.3d at 511).

Construing the Initiative Petition "liberally and non-restrictively," we conclude that

the initiative's multiple provisions all relate to a readily identifiable and reasonably narrow

central purpose: decriminalizing the recreational use and possession of marijuana under

certain circumstances. That the Initiative Petition does so both prospectively and

13 "Provisions [in an initiative petition] that are incidental to effecting the measure's central purpose are not treated as separate subjects." Knight, 282 S.W.3d at 18 (citing United Gamefowl, 19 S.W.3d at 140).

25 retroactively is immaterial, as the central controlling purpose of the measure is served

through both prospective and retroactive application of the measure.

Our conclusion is consistent with the Supreme Court's holding in Committee For a

Healthy Future, Inc., where the challengers to an initiative petition argued that the

proposed measure altered and amended multiple articles of the constitution, and contained

"divergent subjects . . . , namely tobacco cessation and an expansion of the state's Medicaid

program, which they argued is unrelated to smoking." 201 S.W.3d at 511. The Supreme

Court disagreed, noting that although the challengers "posit that there are two divergent

purposes and subjects within the proposal, the clear, single purpose of the proposed

amendment is to raise and disburse a tax." Id. The Court thus concluded that "raising taxes

on tobacco products and disbursing funds to tobacco cessation programs and to public

health programs that include treating tobacco-related illnesses . . . do not violate the single

subject restriction of the state constitution. Id. at 511-512.

Similarly, in Ritter, this Court concluded that an initiative petition that proposed to

amend multiple sections within a single article of the constitution did not violate the single

subject requirement. 561 S.W.3d at 86. Notably, the initiative petition in Ritter addressed

multiple topics as it: (1) specified when legislators and employees of the General Assembly

could serve as paid lobbyists; (2) prohibited legislators and legislative employees from

accepting gifts of a particular value from paid lobbyists; (3) prohibited Senate and House

candidates from accepting campaign contributions over a certain amount in an election

cycle; (4) prohibited candidates from accepting contributions from federal political action

committees unless the committee filed certain financial disclosure reports; (5) declared

26 legislative records as public records and legislative meetings as public meetings in certain

circumstances; (6) prohibited legislators and legislative candidates from engaging in

political fundraising activities on State property; (7) modified the apportioning procedure

for House and Senate Districts; (8) created a new position called the "non-partisan state

demographer" and provided instruction for that position; and (9) described the process for

selecting, and rules for, reapportionment commissions. Id. at 80-81. We concluded that

these multiple, discrete provisions in the initiative petition satisfied the single subject

requirement because they all "relate[d] to a single central purpose: regulating the legislature

to limit the influence of partisan or other special interests." Id. at 86.

Several other Missouri cases confirm that successful single subject challenges are a

rarity. See Buchanan v. Kirkpatrick, 615 S.W.2d 6, 13-14 (Mo banc 1981) (holding that

an initiative petition adopted by voters which amended article X of the constitution to

impose taxation and spending lids on state government, to require state government to

continue financial support of local governments, and to impose a tax lid and limits on

revenues derived from property assessments on local governments, did not violate the

single subject rule because the multiple provisions were "properly connected" with the

"central purpose of limiting taxes and governmental expenditures within Missouri");

Knight, 282 S.W.3d at 14, 18 (holding that an initiative petition that proposed to amend the

constitution to repeal gambling loss limits, to prohibit future loss limits, to restrict when

identification could be required to enter gambling areas, to restrict the number of casinos,

to increase the casino gambling tax, to create an education fund from gambling tax

proceeds, and to require annual audits of the fund, did not violate the single subject

27 requirement because the central purpose of the measure was the regulation of gambling

and gambling revenues); Kuehner v. Kander, 442 S.W.3d 224, 226-227, 231 (Mo. App.

W.D. 2014) (holding that an initiative petition that addressed when certificated staff would

not be considered at-will employees of a school district, prohibited school districts that

receive certain funding from entering certain contracts with certificated staff, provided

instructions for implementing a standards-based performance evaluation system, provided

additional causes for demoting or discharging certificated staff, and described the right of

certificated staff to organize and bargain collectively, did not violate the single subject

requirement because the measure had a readily identifiable and reasonably narrow central

focus "on the parameters of teacher employment and retention within school districts").

The single subject requirement in article III, section 50 of the Missouri Constitution

requires only that multiple, discrete provisions in an initiative petition all be related to a

single central purpose. In this context, "subject" does not refer to the number of discrete

changes envisioned by a proposed constitutional amendment, and instead refers to whether

all provisions in a proposed constitutional amendment "are germane to a single purpose."

Comm. for a Healthy Future, Inc., 201 S.W.3d at 511. The Initiative Petition does not

violate the single subject requirement of article III, section 50 of the Missouri Constitution

because its discreet provisions, though effecting more than one change, all relate to a

readily identifiable, and reasonable narrow, single purpose--the decriminalization of

marijuana use and possession under certain circumstances.

Our conclusion is not altered by the additional arguments Sweeney raised at trial or

on appeal about the content of the Initiative Petition. Sweeney complains that the Initiative

28 Petition creates a new state officer located in the Department of Health and Senior Services

who is charged with creating and implementing "public education programming" relating

to opportunities in the sale or production of marijuana. Sweeney complains that the

Initiative Petition effectively modifies Chapter 610, Missouri's Sunshine Law, by

addressing which public records from marijuana applicants or licensees will be closed

records. Sweeney complains that the Initiative Petition modifies procedures for securing

search warrants in cases relating to marijuana use or possession by requiring law

enforcement to verify whether the targeted person is a qualifying patient or primary

caregiver. Sweeney complains that the use of "no-knock" warrants is restricted by the

Initiative Petition in connection with certain marijuana offenses. Sweeney complains that

the Initiative Petition imposes an additional evidentiary requirement to secure a conviction

of someone who is operating a boat, car, or other motorized vehicle while under the

influence of marijuana.

Setting aside our concern that these provisions of the Initiative Petition were not

mentioned in Sweeney's petition, we nonetheless conclude that the additional provisions

Sweeney now highlights are not unlike those in Committee for a Healthy Future, Inc.,

Ritter, Kuehner, and other cases herein summarized. The additional provisions all relate

to a readily identifiable, and reasonable narrow, single purpose--the decriminalization of

29 The circuit court correctly concluded that the Initiative Petition does not violate the

single subject requirement in article III, section 50 of the Missouri constitution. Sweeney's

fourth point on appeal is denied.14

III

The Secretary Properly Determined that the Initiative Petition was Signed by a Sufficient Number of Registered Voters to Permit its Certification

Sweeney third point on appeal alleges that the Secretary erroneously certified the

Initiative Petition because an insufficient number of valid signatures were secured to permit

certification as required by article III, section 50 of the Missouri Constitution. Specifically,

Sweeney alleges that the Secretary certified and counted signatures determined by the

Secretary to belong to registered voters after local election authorities had determined that

the signers were not registered voters. Sweeney contends that the Secretary was prohibited

by section 116.140 from disregarding a local election authorities' determination that a

signature is invalid, even if the Secretary independently determines that the signer is a

registered voter. The circuit court found Sweeney's claim to be without merit. The circuit

did not err in doing so.

Article III, section 50 of the Missouri Constitution provides in pertinent part that

"[i]nitiative petitions proposing amendments to the constitution shall be signed by eight

14 In the argument portion of her brief, Sweeney raises a new and distinct challenge to the Initiative Petition that was not pled in Sweeney's petition, that is not addressed in the Judgment (suggesting strongly that it was not timely or effectively raised as an issue with the circuit court), and that exceeds the scope of Sweeney's point relied on. Specifically, Sweeney's brief makes the additional argument that the Initiative Petition violates article III, section 50 of the Missouri Constitution because it amends more than one article of the constitution. Even if we could be persuaded that this argument was preserved by being raised below, "[a]rguments advanced in the brief but not raised in the point relied on are not preserved, and will not be addressed by this court." Burg v. Dampier, 346 S.W.3d 343, 354 (Mo. App. W.D. 2011) (citing Rule 84.04(e)).

30 percent of the legal voters in each of two-thirds of the congressional districts in the state[.]"

Because Missouri has eight Congressional Districts, initiative petitions must be signed by

eight percent of the legal voters in six or more of those districts. "Legal" voters is accepted

to mean "registered" voters for purposes of determining the validity of a signature on an

initiative petition. Ketcham v. Blunt, 847 S.W.2d 824, 827 (Mo. App. W.D. 1992) (citing

Scott v. Kirkpatrick, 513 S.W.2d 442, 444 (Mo. banc 1974) (holding that "unless a person

is registered he is not at any time legally entitled to vote")).15 Thus, where the sufficiency

of signatures in favor of an initiative petition is challenged, the determining question to be

resolved is whether a sufficient number of registered voters within at least six of Missouri's

eight Congressional Districts in fact signed the petition. Comm. for a Healthy Future, Inc.,

201 S.W.3d at 508 (holding that "article III, section 50 of the Missouri Constitution makes

clear that the determining factor in analyzing whether initiative petitions are sufficient is

whether they contain the signatures of eight percent of the legal voters in each of two-thirds

of the congressional districts in the state") (citing United Labor Committee of Missouri v.

Kirkpatrick, 572 S.W.2d 449, 455 (Mo. banc 1978)). A challenger to the sufficiency of

signatures must therefore establish that signatures are actually invalid, and that the number

of invalid signatures disqualifies the initiative petition from certification pursuant to article

III, section 50 of the Missouri Constitution.

15 However, the formula for calculating the number of "legal (registered) voters" against which eight percent is calculated is not so simple as calculating eight percent of all "registered voters," and is instead controlled by article III, section 53 of the Missouri Constitution, which provides in pertinent part that "[t]he total vote for governor at the general election last preceding the filing of any initiative or referendum petition shall be used to determine the number of legal voters necessary to sign the petition." See Ketcham, 847 S.W.2d at 829 ("The insinuation into [Article III,] sections 50 and 53 of the interpolation that the computation of the signatures required for the initiative is based upon the number of people registered, and so could have voted, rather than those that did vote, is sustained by neither the history and text of the provisions nor by precedent.")

31 In determining whether a challenger has sustained this burden, we remain mindful

that "[t]he courts of this state must zealously guard the power of the initiative petition

process that the people expressly reserved to themselves in article III, section 49." Boeving,

496 S.W.3d at 506. "To that end, '[c]onstitutional and statutory provisions relative to

initiative are liberally construed to make effective the people's reservation of that power.'"

Id. (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827). Our Courts

have consistently refused to burden the peoples' right to seek to amend the Missouri

Constitution based on alleged procedural or technical flaws in the collection or certification

of signatures for which the signers bear no fault. As was emphasized by our Supreme

Court in United Labor, 572 S.W.2d at 454, "[t]o allow form to rule over substance is to

permit . . . defeat [of] the initiative submission in spite of the fact that the proper number

of voters have done all they can to comply with the initiative procedure." This refrain was

repeated in Committee for a Healthy Future, Inc., 201 S.W.3d at 509, where our Supreme

Court held:

United Labor has not been invalidated by changes in the election laws and continues to establish the proper focus--Do the requisite numbers of signatures appear on the petition? The General Assembly has not declared the failure to comply with [a signature collection statute] to be fatal . . . . The circuit court properly focused on the signatures' validity and properly rejected [the challenger's] attempt to invalidate signatures because of errors committed by persons other than the signers.

Our Supreme Court reiterated this principle yet again in crisp and unequivocal terms in

Boeving, 496 S.W.3d at 507, when it held that "in the absence of any clear and

32 unambiguous statutory requirement invalidating signatures gathered on petition pages . . .

the Court will not infer such a requirement."16

It is within this framework that Sweeney's challenge of the Secretary's certification

of signatures must be gauged. Sweeney complains that the Secretary certified some

signatures to be valid signatures of registered voters even though the signatures were

initially designated by local election authorities not to be valid signatures of registered

voters. For Sweeney's challenge to prevail, Sweeney must establish: (i) that a clear and

unambiguous statute prohibited the Secretary from determining that a signature belonged

to a registered voter after a local election authority determined to the contrary; and (ii) that

the number of signatures prohibitively validated by the Secretary was of a sufficient

quantity to cause the number of registered voters who signed the Initiative Petition to fall

below the requirements of article III, section 50 of the Missouri Constitution. Sweeney has

sustained neither burden.

Section 116.120.1 provides that the secretary of state "shall" examine an initiative

petition "to determine whether it complies with the Constitution of Missouri and with this

chapter." The secretary of state's mandatory duty in this regard includes the obligation to

verify that an initiative petition has the requisite number of signatures of registered voters

required by article III, section 50 of the Missouri Constitution.

16 Even clear and unambiguous statutory requirements invalidating signatures gathered on initiative petition pages remain subject to a potential claim that the requirement is unconstitutional. Boeving, 496 S.W.3d at 507 (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827 ("Statutes that place impediments on the initiative power that are inconsistent with the reservation found in the language of the constitution will be declared unconstitutional."). No such challenge has been raised in this case.

33 The manner in which the secretary of state fulfills this mandatory duty is not clearly,

unambiguously, or unequivocally limited by any statutory provision. Chapter 116 does

authorize two techniques and measures that may be employed to verify signatures at the

secretary of state's discretion. See section 116.120.1-4 (discussing the manner in which the

secretary of state "may verify the signatures on the [initiative] petition by use of random

sampling"); section 116.130 (discussing the manner in which the secretary of state "may

send copies of petition pages to election authorities to verify that the persons whose names

are listed as signers to the petition are registered voters") (emphasis added). However,

these permissive techniques and measures are not expressed to the exclusion of one

another, or to the exclusion of any other technique or measure the secretary of state might

elect to employ to fulfill the mandatory duty to verify that an initiative petition has the

requisite number of signatures of registered voters required by article III, section 50 of the

Missouri Constitution. We will not infer such a restraint. See Boeving, 496 S.W.3d at 507

(holding that "in the absence of any clear and unambiguous statutory requirement

invalidating signatures gathered on petition pages . . . the Court will not infer such a

requirement").

Sweeney nonetheless argues that once the Secretary sought input from local election

authorities regarding the validity of signatures pursuant to section 116.130, the Secretary

was prohibited from utilizing any other technique or measure to independently determine

that signatures belonged to registered voters. Sweeney's petition alleges that the Secretary

"certified and counted signatures that were marked through by . . . local election

authorities," and relies on section 116.130.1 to challenge the Secretary's certification of the

34 sufficiency of signatures on the Initiative Petition. Specifically, Sweeney's petition relies

on the following language in section 116.130.1:

Each election authority shall check the signatures against voter registration records in the election authority's jurisdiction, but the election authority shall count as valid only the signatures of persons registered as voters in the county named in the circulator's affidavit. Signatures shall not be counted as valid if they have been struck through or crossed out.

(Emphasis added.) Sweeney's petition contends that local election authorities "struck

through" signatures on petition pages that were determined not to be registered voters, and

that the Secretary thereafter counted some of those signatures as valid, in violation of the

highlighted provision in section 116.130.1.

This argument is facially absurd, as the highlighted provision in section 116.130.1,

read in context, plainly applies to limit a local election authority's authority to count as

valid any signature on a petition page that is struck through or crossed out at the time the

page is received by the local election authority for review. Section 116.130.1 does not

clearly, unequivocally or unambiguously prohibit the Secretary from independently

validating the registered voter status of signers whose signatures have been struck through

or crossed out on petition pages by local election authorities. To hold otherwise would be

to improvidently disenfranchise voters whose signatures have been erroneously stricken or

crossed through by a local election official through no fault of the signer. Comm. for a

Healthy Future, Inc., 201 S.W.3d at 509 (citing United Labor, 572 S.W.2d at 454).

Perhaps recognizing the futility of the interpretation of section 116.130.1 argued in

her petition, Sweeney has abandoned reliance on section 116.130.1 on appeal. Instead,

Sweeney now relies exclusively on section 116.140 to argue that the Secretary was

35 statutorily prohibited from overriding a local election authority's determination that a

signer on a petition page is not a registered voter.

Section 116.140 is not mentioned at all in Sweeney's petition. Nor are there any

allegations in the petition that could be construed to argue a violation of the section

116.140, which provides:

Notwithstanding certifications from election authorities under section 116.130, the secretary of state shall have authority not to count signatures on initiatives or referendum petitions which are, in his opinion, forged or fraudulent.

(Emphasis added.) Even overlooking our rather serious question that a violation of section

116.140 was not pled in Sweeney's petition,17 it is plain that Sweeney's reliance on section

116.140 is unavailing. Section 116.140 only addresses the limits imposed on the secretary

of state to disregard a local election authority's certification of a signature as valid. See

Bradshaw v. Ashcroft, 559 S.W.3d 79, 86 (Mo. App. W.D. 2018) (holding that "[o]nce

local election authorities certify the validity of signatures on an initiative petition, the

secretary of state is afforded no statutory authority to disregard the certification, save the

limited authority provided by section 116.140") (emphasis added). Section 116.140 does

not address at all the secretary of state's authority to disregard a local election authority's

determination that a signature is invalid.

This is a distinction of significance, as it aligns with the requirement to construe

statutory provisions relative to the power of the initiative petition "'to make effective the

17 We are aware that Sweeney did argue at trial that section 116.140 prohibited the Secretary from disregarding a local election authority's determination that a signature is invalid because the signer is not a registered voter.

36 people's reservation of that power.'" Boeving, 496 S.W.3d at 506 (quoting Missourians to

Protect the Initiative Process, 799 S.W.2d at 827). It is one thing for section 116.140 to

plainly limit the secretary of state's authority not to count a signature determined to be

valid by a local election authority. In the absence of such a limitation, the people's initiative

power could be impeded by valid votes being later declared invalid by the secretary of

state. It is quite another thing to infer from section 116.140's silence on the subject that the

secretary of state has no authority to count a signature as valid if the secretary determines

that a local election authority erroneously designated the signature to be invalid. The

people's initiative power would be impeded by such an inference, since supporters of an

initiative who bear no fault for a local election authority's erroneous designation of their

signatures as invalid would be deprived of a voice. As our Supreme Court held in United

Labor, "[t]he uppermost question . . . is whether or not the statute itself makes a specified

irregularity fatal . . . If not, courts will not be astute to make it fatal by judicial construction.

572 S.W.2d at 454 (citations and quotations omitted). "[C]onstruction of a law as would

permit the disenfranchisement of large bodies of voters, because of an error of a single

official, should never be adopted where the language in question is fairly susceptible of

any other." Id. (quotation omitted). "'If the validity of the voters' signatures can be

otherwise verified, their signatures should not be invalidated by'" a local election

authority's error in designating the voter as not registered. Comm. for a Healthy Future,

Inc. 201 S.W.3d at 509 (quoting United Labor, 572 S.W.2d at 454).

We reject, therefore, Sweeney's contention that because section 116.140 fails to

address the secretary of state's authority to validate signatures designated as invalid by a

37 local election authority, we should apply the maxim of expressio unius est exclusio alterius

to infer that the secretary of state is prohibited from disregarding a local election authority's

designation of a signature as invalid. Sweeney seeks to limit the Secretary's authority, and

thereby ignore signatures which the Secretary has determined are valid, based on a negative

implication. Sweeney's contention is in direct and irreconcilable conflict with Boeving's

guidance that "in the absence of any clear and unambiguous statutory requirement

invalidating signatures gathered on petition pages . . . the Court will not infer such a

requirement." 496 S.W.3d at 507. In any event, the Supreme Court has made clear that

expressio unius "'is to be used with great caution,'" and only where '"a strong contrast'"

establishes that what was '"omitted must have been intended for the opposite treatment'"

compared to what is expressly stated in a statutory provision. State ex rel. Hawley v. Pilot

Travel Ctrs., LLC, 558 S.W.3d 22, 31 (Mo. banc 2018) (quoting Six Flags Theme Parks,

Inc. v. Dir. of Revenue, 179 S.W.3d 266, 270 (Mo. banc 2005)). That standard is not met

by section 116.140.

Our decision in Ketcham lends analogous support to the conclusion that

determinations by local election authorities about the invalidity of signatures is not

controlling on the secretary of state, and instead, that the ultimate issue in addressing a

signature challenge to certification of an initiative petition is always whether the initiative

petition has, in fact, been signed by a sufficient number of registered voters to satisfy the

requirements of article III, section 50. In Ketcham, the secretary of state certified that an

initiative petition received a sufficient number of signatures (16,256) in the eighth

Congressional District, and did so by using the "sum of the counts" provided by the local

38 election authorities in the counties in that district from whom the secretary sought signature

verification as permitted by section 116.130. Id. at 830. Following a challenge that

questioned whether sufficient valid signatures supported certification of the initiative

petition, the secretary of state conducted a line by line recount of the "R"18 marks on the

local election authorities' petition sheets (in lieu of relying on the sum of the counts

provided by each election authority), and in the process concluded that there were 16,753

valid signatures. Id. The challenger to the initiative petition argued that the secretary of

state was bound by his initial certification of 16,256 valid signatures. Id. "The increase in

the final count of the secretary of state, from 16,256 to 16,753 valid signatures of registered

voters on the eight congressional district state petitions, was essentially the result of an

arithmetic error by [a] county clerk . . . who certified . . . fewer 'R' signatures than were

actually on the petitions." Id. at 831. The challenger argued that "the undercounted . . .

signatures could not be used to qualify the petitions." Id. We disagreed, holding that "[t]he

constitutional right of the people to the initiative . . . cannot be made to depend upon the .

. . aptitude of the public official." Id.

Ketcham is instructive. It emphasizes that "[i]t is the secretary of state who is

charged with the ultimate administrative determination as to whether [a] petition complies

with the Constitution of Missouri and with the statutes." Id. at 830 (citing section

116.120.1; section 116.150; Missourians to Protect the Initiative Process, 799 S.W.2d at

828). And it analogously holds that in determining whether signatures on a petition are

18 "R" was meant to designate that a signer is a registered voter.

39 valid signatures of registered voters, the secretary of state is not bound by the erroneous

decisions or technical mistakes of local election authorities. Instead, as we have previously

stated, the ultimate, determinative question is whether an initiative petition has, in fact,

been signed by a sufficient number of registered voters.

No clear, unequivocal, or unambiguous statutory provision limits the secretary of

state to using only the techniques or mechanisms for validating signatures described in

sections 116.120 and 116.130 to fulfill the mandatory obligation to ensure that an initiative

petition has been signed by a sufficient number of registered voters to permit the measure's

certification for inclusion on a ballot. No clear, unequivocal, or unambiguous statutory

provision prohibits the secretary of state from using other techniques or measures to

validate signatures in addition to, and commensurately with, the techniques and measures

authorized for discretionary use by sections 116.120 and 116.130. No clear, unequivocal,

or unambiguous statutory provision prohibits the secretary of state from independently

determining that signatures belong to registered voters after a local election authority has

determined to the contrary. We will not infer such restraints or prohibitions on the secretary

of state's ability to certify that signatures on an initiative petition are valid signatures of

registered voters. Boeving, 496 S.W.3d at 507.

B

Separate from her claim that the Secretary was bound by local election authority

determinations that a signature is invalid, Sweeney has not proven that any signature

certified by the Secretary as valid was not, in fact, the signature of a registered voter.

Sweeney has thus failed to establish that an insufficient number of registered voters within

40 at least six of Missouri's eight Congressional Districts signed the Initiative Petition.

Because the ultimate, determinative question is whether a sufficient number of registered

voters within at least six of Missouri's eight Congressional Districts signed the Initiative

Petition as required by article III, section 50 of the Missouri Constitution, Sweeney's

challenge to the sufficiency of signatures fails. Comm. for a Healthy Future, Inc., 201

S.W.3d at 508 (holding that "the determining factor in analyzing whether initiative

petitions are sufficient is whether they contain the signatures of eight percent of the legal

voters in each of two-thirds of the congressional districts in the state") (citing United Labor,

572 S.W.2d at 455).

The circuit court did not err in concluding that the Secretary properly certified that

the Initiative Petition was signed by a sufficient number of registered voters in six of

Missouri's eight Congressional Districts, and thus satisfied the requirements of article III,

section 50 of the Missouri Constitution as to permit placement of the measure on the

November 8, 2022 general election ballot. Sweeney's third point on appeal is denied.

Conclusion

For the reasons set forth above, the Judgment of the circuit court is reversed in part

and affirmed in part. The Judgment's grant of the Secretary's and Proponent's Rule 73.01(b)

Motions and corresponding entry of judgment against Sweeney on the merits based on a

lack of standing to pursue a challenge under section 116.200.1 is reversed. The Judgment's

entry of judgment in favor of the Secretary and Proponent and against Sweeney on the

merits of Sweeney's substantive challenges to the Secretary's certification of the Initiative

Petition as sufficient is affirmed. As such, the Secretary correctly certified the Initiative

41 Petition as sufficient, and correctly directed that the Initiative Petition appear on the

November 8, 2022 general election ballot.

__________________________________ Cynthia L. Martin, Judge

All concur