Missourians Against Human Cloning v. Carnahan

190 S.W.3d 451, 2006 Mo. App. LEXIS 371, 2006 WL 771230

• Court: Missouri Court of Appeals
• Decided: March 28, 2006
• Docket: WD 66495, WD 66496
• Status: Published

Opinions

VICTOR C. HOWARD, Judge.

Missourians Against Human Cloning, et al., appeal the circuit court’s order approving the Secretary of State’s summary statement portion of the certified ballot title for the “Missouri Stem Cell Research and Cures Initiative.” Appellants’ sole point on appeal¹ contends that the certified title is “insufficient or unfair,” in contravention of Mo.Rev.Stat. section 116.190.² Affirmed.

Facts and Procedural Background

The “Missouri Stem Cell Research and Cures Initiative” proposes to amend the Missouri Constitution by citizens’ initiative, as provided in Chapter 116 of the Missouri Revised Statutes. Appellants comprise a number of Missouri citizens and a nonprofit organization. The respondents are Secretary of State Robin Carnahan, a required defendant, and a number of Missouri citizens that the trial court allowed to intervene as additional defendants.

The initiative would permit researchers in Missouri to conduct any stem cell research allowed by federal law. Stem cell research is research on cells that have the ability to divide multiple times and produce specialized cells in the body. In paragraph two, the initiative states that its purpose is:

To ensure that Missouri patients have access to stem cell therapies and cures, that Missouri researchers can conduct stem cell research in the state, and that all such research is conducted safely and ethically, any stem cell research permitted under federal law may be conducted in Missouri, and any stem cell therapies and cures permitted under federal law may be provided to patients in Missouri, subject to the requirements of federal law and only the following additional limitations and requirements!!.]

This appeal focuses on one of the initiative’s proposed limitations and restrictions on stem cell research. Central to the controversy is the initiative’s restriction that “[n]o person may clone or attempt to clone a human being.” The initiative defines human cloning as causing or attempting to cause the birth of a human being by implanting in a uterus anything other than the product of fertilization of a human egg by a human sperm. Appellants disagree with this definition because human cloning, they argue, actually occurs when a body cell and an egg are fused together during a process known as somatic cell nuclear transfer (SCNT). SCNT, which appellants consider cloning, is a process used in stem cell research and is currently permitted by federal law. A human cell produced by SCNT can be used for two purposes: biomedical research or, theoretically, to produce a human child, although the latter has never been attempted. Appellants argue that, while the initiative does ban human cloning to produce a child, it would still allow SCNT to perform research which they also consider human cloning. Therefore, appellants claim, the ballot title’s statement that the initiative would “ban human cloning or attempted cloning” is deceptive.

It is the responsibility of the Secretary of State to certify the official ballot title of an initiative. § 116.180. The ballot title consists of two parts: a summary statement and a fiscal note summary. § 116.010(4).³ After initiative proponents submit a proposed petition and the Secretary of State and Attorney General approve it as to form, § 116.832, the Secretary of State prepares a summary statement of the initiative not to exceed 100 words, § 116.334. The summary “shall be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” Id. This summary statement must be affixed to each page of the petition before being circulated for signatures. § 116.180.

On November 14, 2005, the Secretary of State certified the official ballot title, including the summary statement, challenged by appellants. The complete language of the summary reads as follows:

Shall the Missouri Constitution be amended to allow and set limitations on stem cell research, therapies, and cures which will:

ensure Missouri patients have access to any therapies and cures, and allow Missouri researchers to conduct any research, permitted under federal law; ban human cloning or attempted cloning;

require expert medical and public oversight and annual reports on the nature and purpose of stem cell research;

impose criminal and civil penalties for any violations; and

prohibit state or local governments from preventing or discouraging lawful stem cell research, therapies and cures?

Specifically, appellants challenge the summary’s statement that the initiative would “ban human cloning or attempted cloning.” They contend this summary language is unfair and/or insufficient, in violation of section 116.190, because, while the initiative does ban “cloning to produce children,” it permits the process of SCNT which, appellants claim, constitutes “human cloning.”⁴ Appellants ask us to either certify an alternative summary or reverse and remand, instructing the trial court to do so. Specifically, appellants ask us to replace the phrase “ban human cloning or attempted cloning” with either of the following pairs of phrases:

ban human cloning or attempted cloning to produce children; [but] allow human cloning for biomedical research

or

ban reproductive human cloning or attempted reproductive human cloning; [but] allow human therapeutic cloning or attempted human therapeutic cloning.

(Emphasis added to indicate appellants’ proposed added language.)

At the heart of the controversy is how the parties characterize the process of so-mafic cell nuclear transfer (SCNT), which is one of the methods used in stem cell research that the initiative would constitutionally protect. The parties’ differences are clearly defined when projected against the backdrop of the basic science of SCNT.

SCNT occurs when the nucleus of an unfertilized egg (an oocyte) is removed (enucleated) and replaced with the nucleus of an ordinary body cell (a somatic cell). A somatic cell is any body cell other than a sperm or an egg, for example, a skin cell. The product of this fusion (a zygote) is a single cell that contains the 46 chromosomes of the body cell donor. With stimulation by electrical current or an ionic solution, the zygote can be coaxed to begin a series of divisions called cleavage. After three or four days, the zygote has divided into approximately eight or ten cells and is called the morula. This cell division continues, and on the fourth or fifth day, the result is a ball of about 150 cells called a blastocyst, a very small cluster of cells approximately 1/200 of an inch in diameter. The blastocyst has an outer cell layer and a hollow, fluid filled, inner cavity containing undifferentiated stem cells. Undifferentiated stem cells are cells that have not yet committed to which specific type of body cell they will mature into, for example, a skin, heart, or brain cell. Scientists hope to extract these four- to six-day-old inner stem cells and employ this potential to mature into virtually any type of body cell to provide a repair system for the treatment of a wide variety of illnesses like Parkinson’s or diabetes. It is also at this stage of development that a blastocyst produced through SCNT could theoretically be implanted into a womb resulting in the birth of a human being, although the constitutional initiative would specifically ban such a procedure in Missouri.

Appellants’ position is that, at the moment when a human somatic cell and a human enucleated egg are fused, human cloning occurs because the resulting zygote is, appellants argue, a human embryo at the one-celled stage of human development with genetic information that is virtually identical to the body cell donor. Appellants argue that upon completion of this event, fusion of an egg and a somatic cell, human cloning has occurred and the resulting cell can then be utilized for one of two purposes. If a zygote were to be developed into a blastocyst and implanted into a uterus, appellants describe this as “reproductive cloning” or “cloning to produce children.” If the inner stem cells of the blastocyst are extracted for research or treatment, appellants consider this “cloning for biomedical research” or “therapeutic cloning.” Use of SCNT for either purpose, according to appellants, involves human cloning.

Appellants’ position is in obvious conflict with the definition of human cloning contained in the initiative which states that human cloning “means to implant or attempt to implant in a uterus anything other than the product of fertilization of an egg of a human female by a sperm of a human male for the purpose of initiating a pregnancy that could result in the creation of a human fetus or the birth of a human being.” Respondents defend this definition because, they say, a blastocyst is scientifically defined as an embryo only from the time it is implanted in a uterus until the end of the eighth week, when it becomes known as a fetus. They argue that the cloning of a human being is not the production of a single cell in a petri dish. Instead, producing a “human clone” would be defined as the creation of a complete born human. Respondents further assert that SCNT only involves cells from a blas-tocyst, never cells from an embryo or fetus, as those terms are scientifically defined. Also, they say, a blastocyst left in a petri dish would never develop into an embryo or a human child.

The parties’ differences are stark. According to appellants, human cloning occurs upon the transfer of a body cell’s nucleus into an enucleated egg. According to respondents, and the initiative language, human cloning occurs only where SCNT is used in the attempt to cause the birth of a human being, in other words, to create a human version of the much-publicized Dolly the sheep. Both sides introduced evidence to support their definition of human cloning. However, for reasons we later explain, it is not necessary for us to resolve this definitional disagreement in the context of this ballot title challenge.

Appellants challenged the ballot title in the circuit court of Cole County. The trial court heard evidence and arguments and found that the appellants did not sustain their burden to establish that the summary statement portion of the ballot title was insufficient or unfair as those terms are used in section 116.190 and denied relief. This appeal followed.

Standard of Review

In a court-tried case, we will sustain the trial 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 applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Hancock v. Sec’y of State, 885 S.W.2d 42, 46 (Mo.App. W.D.1994).

Discussion

Chapter 116 provides that “[a]ny citizen who wishes to challenge the official ballot title ... prepared for a proposed constitutional amendment ... by initiative petition ... may bring an action in the circuit court of Cole County.” § 116.190.1. “The petition shall state the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair and shall request a different summary statement....” § 116.190.3. “[T]he court shall consider the petition, hear arguments, and in its decision certify the summary statement portion of the official ballot title to the secretary of state.” § 116.190.4.

Our role is not to act as a political arbiter between opposing viewpoints in the initiative process:

When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation....

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Courts are understandably reluctant to become involved in pre-election debates over initiative proposals. Courts do not sit in judgment on the wisdom or folly of proposals.

Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). “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.” United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000).

The burden is on the opponents of a summary statement to show that the language is “insufficient and unfair.” Hancock, 885 S.W.2d at 49. We have previously defined “insufficient or unfair”:

Insufficient means “inadequate; especially lacking adequate power, capacity, or competence.” The word “unfair” means to be “marked by injustice, partiality, or deception.” Thus, the words insufficient and unfair ... mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].

Id. (citations omitted). The purpose of the ballot title “is to give interested persons notice of the subject of a proposed [law] to prevent deception through use of misleading titles. If the title gives adequate notice, the requirement is satisfied.” Union Elec. Co. v. Kirkpatrick, 606 S.W.2d 658, 660 (Mo. banc 1980).

Appellants argue that the summary is insufficient and unfair because it states that the initiative bans human cloning when, in fact, the initiative allows what they consider human cloning. Appellants’ argument is not based on the contention that the summary is a mismatch with the language of the initiative; they conceded during oral argument that the summary’s language is not inconsistent with the initiative. Appellants’ real dispute seems not so much with the summary statement as it is with the initiative’s definition of human cloning, a definition supported by evidence introduced at the hearing. While appellants may disagree with the initiative’s definition of human cloning, that alone does not make the summary inaccurate. The summary states that the initiative bans human cloning and, in fact, by its very terms, the initiative does. The summary could be considered misleading only if we ignore the definition of human cloning actually set out in the initiative and substitute appellants’ definition.

Appellants contend that their proposed substitute language would more clearly reflect the purpose of the initiative. Appellants’ suggested language would revise the summary to state that the initiative would permit “human cloning” for “therapeutic” or “biomedical research” purposes. Respondents object to the substitute language arguing that the suggested language is vague, confusing, and would introduce undefined terms not commonly used in the scientific community. We agree with respondents to the extent that adding language to indicate that the initiative does not ban human cloning would certainly be misleading because human cloning, as defined in the initiative, is banned. In effect, Appellants want us to revise the summary to highlight the underlying controversy surrounding the merits of the initiative. Resolution of that controversy must be left to the political process.

Even if, as appellants argue, their substitute language would provide more specificity and accuracy in the summary statement “and even if that level of specificity might be preferable, whether the summary statement prepared by the Secretary of State is the best language for describing the [initiative] is not the test.” Bergman v. Mills, 988 S.W.2d 84, 92 (Mo.App. W.D.1999); Overfelt v. McCaskill, 81 S.W.3d 732, 738 (Mo.App. W.D.2002). “The important test is whether the language fairly and impartially summarizes the purposes of the [initiative.]” Bergman, 988 S.W.2d at 92. Within the confines of the 100-word limit, the summary “need not set out the details of the proposal.” United Gamefowl Breeders Ass’n of Mo., 19 S.W.3d at 141.

Ultimately appellants ask us to choose their definition of human cloning over that set out in the initiative. We decline to choose between the two definitions. To do so would edge us toward a review of the merits of the initiative itself. That is beyond the scope of review we have been assigned by the legislature in section 116.190. There may well be a situation where an initiative’s language and purpose are so absurd or unsupportable that merely summarizing the initiative without explanation would be deceptive and misleading. That is not our case.

One of the purposes of the initiative is to ban human cloning, a term it defines. The Secretary of State’s summary states that the initiative would “ban human cloning or attempted cloning.” The summary accurately describes what the initiative says it will do and gives voters sufficient and fair notice of the subject and purpose of the initiative. ‘While there may be aspects of the ballot initiative or consequences resulting therefrom that [a]ppellant[s] would have liked to have seen included in the summary statement, their exclusion does not render the summary statement either insufficient or unfair.” Overfelt, 81 S.W.3d at 739.

The conclusion of the trial court that appellants did not sustain their burden of establishing that the summary statement of the official ballot title is either insufficient or unfair is not erroneous. The judgment is affirmed.

HOLLIGER, J., concurs.

SMART, J., concurs in part and dissents in part in separate opinion.

1 . Multiple appellants and respondents have filed multiple briefs in this case. Appellants’ arguments are almost, but not quite, in unison. We will address all of appellants’ claims together.

2 . All statutory citations are to Mo.Rev.Stat. (Cum.Supp.2005) unless otherwise noted.

3 . The fiscal note summary portion of the ballot title is not contested in this case.

4 . The initiative is also applicable to stem cell research other than that involving SCNT, for example, work with adult stem cells that are undifferentiated cells found in body tissue, such as an umbilical cord, or research using blastocysts left over from fertility treatments utilizing in vitro fertilization.