Missourians to Protect the Initiative Process v. Blunt

799 S.W.2d 824, 1990 WL 164014

• Court: Supreme Court of Missouri
• Decided: December 7, 1990
• Docket: 73148
• Status: Published

Opinions

PER CURIAM.

This is an appeal from an injunction prohibiting the appellant Secretary of State from placing proposed constitutional amendment “No. 5” on the November 6, 1990, ballot. The appeal was initially filed in this Court but, due to a lack of jurisdiction,¹ the cause was transferred to the Missouri Court of Appeals, Western District. Because questions of statewide concern were involved, this Court granted transfer before opinion. Rule 83.06, Mo. Const. art. V, §10. The circuit court judgment is affirmed.

I.

On May 9, 1990, the “Yes for Ethics Committee” submitted to the Secretary of State a proposed initiative petition to amend the state’s constitution. The petition, if adopted, would repeal §§ 2, 9, 16, 20, 20(a), 21, 22, 23 and 25 of article III, would adopt nine new sections in lieu thereof, and would adopt three new sections, 54, 55 and 56 of article III. The Secretary delivered the proposal to the Attorney General. Both officials “review[ed] the petition for sufficiency as to form” and approved it. § 116.332.1.² The Secretary of State also drafted a proposed ballot title and transmitted it to the Attorney General. The Attorney General approved and returned the ballot title to the Secretary of State on May 11, 1990. § 116.334.2. On September 1, 1990, the Secretary of State certified that a sufficient number of voters had signed the petitions to require that the initiative proposal be placed on the ballot at the November 1990 general election. § 116.150.1.

On September 5, 1990, plaintiffs filed an action in the circuit court of Cole County. Among other relief, they sought to enjoin the Secretary of State from placing the initiative proposal on the November ballot. The “Yes for Ethics Committee” intervened.

The trial court entered judgment on October 11, 1990, enjoining the Secretary of State from placing the measure on the ballot. The judgment was based on several grounds. Among the trial court’s conclusions, it determined that the initiative petition proposal does not comply with the provisions of article III, § 50, requiring that petitions for constitutional amendments contain no “more than one subject and matters properly connected therewith.” The appeal has been expedited.

II.

Before reaching the issues presented in this appeal, it is important to make some general observations regarding the initiative process provided by the constitution. Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from whom all constitutional authority is derived, have reserved the “power to propose and enact or reject laws and amendments to the Constitution.” Mo.Const. art. III, § 49. When courts are called upon to intervene in the initiative 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. Constitutional and statutory provisions relative to initiative are liberally construed to make effective the people’s reservation of that power. State ex rel. Blackwell v. Travers, 600 S.W.2d 110, 113 (Mo.App.1980). 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.

The people, speaking with equal vigor through the same constitution, have placed limitations on the initiative power. That those limitations are mandatory is clear and explicit.

This constitution may be revised and amended only as therein provided.

Article XII, § 1 (emphasis added). Among other prerequisites found in the constitution, the initiative petition must (1) be signed by 8% of the voters in each of two-thirds of the congressional districts in the state, (2) be filed with the Secretary of State no less than four months before an election, (3) contain a proper enacting clause, and (4) contain no more than one amended and revised constitutional article, or one new article which contains not more than one subject and matters properly connected therewith. Mo.Const. art. III, § 50. The constitution has created two competing and contradictory concepts: the inherent right of the people to alter the constitution, and the need for stable, permanent, organic law. Buchanan v. Kirkpatrick, 615 S.W.2d 6, 11 (Mo. banc 1981). Neither concept may be ignored to advance the other, but the two must be balanced.

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. Neither will courts give advisory opinions as to whether a particular proposal would, if adopted, violate some superseding fundamental law, such as the United States Constitution. State ex rel. Dahl v. Lange, 661 S.W.2d 7, 8 (Mo. banc 1983); State ex rel. Cramer v. Brown, 7 Ohio St.3d 5, 454 N.E.2d 1321, 1322 (1983). Our single function is to ask 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. Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 1133 (banc 1896).

III.

The pivotal question here is whether this proposed constitutional amendment violates the requirement that an initiative petition contain no more than one subject and matters connected therewith.

Appellants argue that the trial court had no jurisdiction prior to the election to reach the merits of the claim that the initiative petition contains more than one subject. There is authority suggesting, but not holding, that substantive defects in initiative proposals may only be raised after the election, and that a claim of multiple subjects is substantive. State v. Burns, 351 Mo. 163, 172 S.W.2d 259, 266 (1943); Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 662 (banc 1942). The rule alluded to in those cases was not based on any language in the constitution or statutes relative to initiative petitions. The principle arises out of general policies relating to judicial restraint and economy of judicial resources. Appellants rely on various statements in the cases saying that courts will not render an advisory opinion as to whether a proposal would be constitutional if adopted, Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984), or that the initiative process, being akin to the legislative process, should not be interrupted until the legislative labor is complete, Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055, 1057 (banc 1916). Neither of those cases nor others cited by appellants hold that the courts of this state lack authority to conduct a pre-election examination of an initiative petition to determine whether it complies with the provisions of article III, § 50.

There are equally compelling reasons to grant pre-election review. The cost and energy expended relating to elections, and the public confusion generated by avoiding a speedy resolution of a question militate in favor of a limited pre-election review. There are also several cases in which courts have conducted a pre-election review to determine if conditions precedent to placing a proposal on the ballot have been met. See Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657 (banc 1942); State ex rel. Stokes v. Roach, 190 S.W. 277 (Mo. banc 1916); Yes to Stop Callaway Committee v. Kirkpatrick, 685 S.W.2d 209 (Mo.App.1984). In Moore, this. Court actually struck an issue from the ballot because of defects similar to those asserted here. In Buchanan, 615 S.W.2d at 12-13, the Court said:

Mo.Const. art. Ill provides the safeguard against petitions containing “more than one subject and matters properly connected therewith.” (Emphasis added.) Section 126.081 [RSMo 1978, now repealed] ... authorizes anyone “dissatisfied” with the [ballot] title to resort to the courts. Either of these matters is reviewable by the courts prior to election.

The claim that no initiative proposition has been or can be struck from the ballot prior to election because it submits issues in a manner prohibited by the constitution is unsupported by the cases.

Ultimately, the rationales for granting or refusing pre-election judicial review must give way to the plain language and reasonable construction of the constitution and statutory provisions relating to the initiative process. The dichotomy between procedural defects in the initiative process and substantive defects in that process is not found in the language of the constitution or the statutes. Among other prerequisites, article III, § 50 provides, “Petitions for constitutional amendments shall not contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith.” Any reasonable construction of the quoted language leads to the inescapable conclusion that regardless of the meritorious substance of a proposition, if the prerequisites of article III, § 50 are not met, the proposal is not to be on the ballot. Any controversy as to whether the prerequisites of article III, § 50 have been met is ripe for judicial determination when the Secretary of State makes a decision to submit, or refuse to submit, an initiative issue to the voters. At that point, a judicial opinion as to whether the constitutional requirements have been met is no longer hypothetical or advisory.

Appellants contend that Payne v. Kirkpatrick, 685 S.W.2d 891 (Mo.App.1984), prohibits the Secretary of State from considering matters other than the sufficiency of the signatures. That case does not so state, nor is the claim consistent with a reasonable reading of § 116.120. Under that statute, the Secretary of State is charged with determining whether the petition “complies with the Constitution of Missouri and with this Chapter.” § 116.120.1. If the legislature had only intended that the Secretary of State count signatures, it could have so stated. But the language used mandates a more extensive examination. At minimum, § 116.120.1 requires the Secretary of State to examine the petition to insure that the threshold requirements of article III, § 50 have been met. That necessarily requires the Secretary of State to examine the proposal to insure it does not contain multiple subjects.

The statutes provide that after a determination of the petition’s sufficiency, the Secretary of State is to issue a certificate that the petition contains sufficient signatures to comply with constitutional requirements. § 116.150.1. After the petition is certified, “any citizen may apply to the circuit court of Cole County to compel [the Secretary of State] to reverse his decision.” § 116.200. As previously noted, an essential element of the Secretary’s decision is the determination that the petition complies with the constitutional requirements found in article III, § 50. Thus, the trial court committed no error and had the authority under § 116.200.1 to consider, prior to the election, whether the petition complied with the requirements found in article III, § 50.

IV.

Ancillary to other arguments, appellants present a complex argument that the plaintiffs’ remedy is untimely because the pre-election remedy relating to dual subject matter is limited to a proceeding to test the sufficiency of the ballot title under § 116.190. That provision authorizes an action to challenge the ballot title, although it does not authorize an injunction to stop the election. If the ballot title challenge is timely filed, the court is authorized to do no more than certify a correct ballot title. Section 116.190 does not authorize a review as to whether the constitutional prerequisites have been met. The legislature has provided another remedy, and that remedy is found under § 116.200. As previously noted, that section permits the trial court to proceed to determine whether the initiative petition here at issue violated the single subject rule. An action to challenge the Secretary’s decision must be brought within ten days after certification. § 116.200.1. In this ease, the Secretary of State issued his certificate on September 1, 1990, and plaintiffs filed a petition for injunction September 5, 1990. The petition for the injunction was filed within the ten-day time limit. The claim that the action is untimely is without merit.

V.

Appellants further argue that plaintiffs lack standing. The statute authorizing injunctive relief permits “any citizen” to bring the action. § 116.200.1. Plaintiffs are not required to show any particular harm. Defendant’s answer admits plaintiffs are Missouri citizens. The claim that the individual plaintiffs lack standing is without merit.

VI.

An additional basis for claiming trial error is the assertion that the placement of the comma in article III, § 50, and article XII, § 2(b) of the 1945 Constitution modified the meaning of the language of those sections. Article XV, § 2 of the constitutional provision predating 1945 provided, “No proposed amendment shall contain more than one amended and revised article of this Constitution or one new article which shall not contain more than one subject and matters properly connected therewith.” In 1945, the same language became part of article III, § 50 and article XII, § 2(b), but a comma was added between the word “Constitution” and the word “or.” Appellants would have us apply for the first time a strict grammatical rule³ so that the phrase “shall contain no more than one subject” does not apply to revisions or amendments of a pre-existing article, but only to proposals seeking to add a new article to the constitution. If appellants’ punctuation argument were accepted, a proposed amendment could, so long as it is denominated as an amendment to a single article, repeal the entire document and enact a new constitution.

What appellants’ argument does not take into account is that the cases decided both before and after 1945 have consistently treated the “shall not contain more than one subject” phrase as applicable to revised or amended constitutional articles and has not limited that phrase to new constitutional articles. See, e.g., Buchanan v. Kirkpatrick, 615 S.W.2d 6 (Mo. banc 1981); Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657 (banc 1942).

In addition, the constitution is organized by subject into various articles. Each article is subdivided into sections. The sections relate to specific matters connected with the general heading of the article. The concept of “one amended or revised article” carries with it the connotation of a single subject and connected matters. To say an amendment must be limited to “one amended and revised article ... which shall not contain more than one subject and matters properly connected therewith,” is somewhat redundant.

More importantly, courts are directed by something more than strict grammatical rules when construing the constitution. Courts are reluctant to determine matters of deep concern solely upon consideration of punctuation and grammar if the purpose of the provision may be otherwise determined. Application of Graham, 199 S.W.2d at 75. In this situation, the 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. Moore v. Brown, 165 S.W.2d at 662. 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. State ex rel. Callaghan v. Maitland, 296 Mo. 338, 246 S.W. 267, 272 (banc 1922). That purpose is restated in article XII, § 2(b), the relevant portion of which reads:

More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately.

The records of the constitutional debates also support the conclusion that the drafters had no intent to modify the historical meaning of the article.⁴ In the absence of something to suggest that the 1945 addition of the comma was intended to modify the purpose, this Court continues to give the prohibition its historical meaning.

VII.

As previously noted, the dispositive question is whether the initiative proposal contains more than one subject and matters related thereto. In determining whether the proposed constitutional amendment violates the “one subject” rule, there are certain general principles that have been established. A proposal will be liberally and nonrestrictively construed so that provisions connected with or incident to effectuating the central purpose of the proposal will not be treated as separate subjects. See Buchanan v. Kirkpatrick, 615 S.W.2d 6 (Mo. banc 1981); Oregon Educ. Ass’n v. Phillips, 302 Or. 87, 727 P.2d 602 (1986). An amendment to any article may have the effect of changing several articles or sections of the constitution, if all are germane to a single controlling purpose. Moore v. Brown, 165 S.W.2d at 662. Ultimately each proposal to amend the constitution must turn on the particular language and the subject matter involved.

The Buchanan case, more than any other, probed the outer limits of what matters may be included in a single constitutional proposition without violating the single subject rule. The proposition there under consideration amended article X, relating to taxation. Arguably, the proposal included six subjects: 1) a taxation lid on state government; 2) a spending lid on state government; 3) a directive that state government continue financial support of local government; 4) a tax lid on local government; 5) limits on local governments obtaining revenues based on assessments and property; and 6) a grant of original jurisdiction to the Supreme Court to hear taxpayer suits to enforce the provisions of the amendment. The proposal contained matters that had the effect of limiting the authority of the legislature and granted jurisdiction to the judiciary, subjects previously found in article III and article V, respectively. Nevertheless, the Court found a readily identifiable and reasonably narrow purpose that knitted all the diverse provisions together. The central purpose was to limit taxes and spending by state and local government. Buchanan v. Kirkpatrick, 615 S.W.2d at 13.

In the case now before the Court, the portions of the proposal revising §§ 2 through 25 of article III focus exclusively on the regulation of the General Assembly. Among other things, the revised sections would reduce the number of the members of the General Assembly beginning in the year 2003, modify the length of the legislative session and establish regulations relating to committee appointments. The new provisions of the proposal, beginning with § 54, create an ethics commission having authority to 1) regulate those who lobby legislators or members of the executive branch, 2) require legislators, members of the executive branch and other state officials and employees to file financial disclosures, and 3) enforce specified ethical restrictions against legislators and members of the executive branch. Finally, the new provisions authorize imposition of sanctions against members of the General Assembly, members of the executive branch, and other public officials for ethical conduct violations. From this description of the proposal, it is apparent that the amendment would substantially reorganize the legislature and, at the same time, impose constitutional ethical restrictions on officers, officials, and employees of the legislative and executive departments.

The constitution is divided into separate articles. The legislative department is provided for in article III. The executive department, its officers, and their responsibilities are provided for under article IV of the constitution. Public officials, in general, regulation of their conduct, and sanctions against their misconduct have heretofore been the subject of article VII. The organization of the constitution creates a presumption that matters pertaining to separate subjects therein described should be set forth in the article applicable to that subject and not commingled under unrelated headings. The organizational headings of the constitution are strong evidence of what those who drafted and adopted the constitution meant by “one subject.”

The fact that a single initiative petition amending one article has the effect of amending more than one article of the constitution does not render the proposal per se in violation of the multiple subject prohibition; however, a proposal having such effect is suspect. When a proposal deals with matters that were previously the subject of an article other than the one being amended, the Court must scrutinize the proposal to see if all matters included relate to a readily identifiable and reasonably narrow central purpose.

The Court looks first to the explanation of the appellants to determine what single subject they assert is contained in the proposal. The appellants do not agree on the subject of the initiative petition. The brief of the “Yes for Ethics Committee” suggests the single subject of the proposal is that all sections are “legislative matters.” The Secretary of State’s brief avers the single subject is “the regulation of public officials’ conduct.” As appellants would have us construe these subjects, they are extremely broad.

If multiple matters may be lumped together under excessively general headings, the single subject restriction of article III, § 50 would be rendered meaningless. Even though specific provisions of a proposal are given a liberal and non-restrictive construction in determining what matters are connected to a particular subject, the Court will not adopt a construction of the words “one subject” that renders the constitutional prohibition against multiple subjects meaningless. Furthermore, the subject “legislative matters” is not connected to the ethical restrictions on officials of the executive department. Similarly, the subject “regulation of public officials’ conduct” is unconnected to the number of members in the General Assembly or the length of legislative sessions. Thus, even under the broad rubrics suggested, this proposal fails to comply with the constitutional prerequisite that the proposed amendment contain no more than one subject. The failure of the appellants to agree on the identification of a central purpose is a strong indicator of the proposal’s multiplicity.

Notwithstanding the explanations of appellants, the Court must make an independent examination of the proposed amendment to determine if there is a diseernable single subject to which all provisions of the proposal are connected. The proposed revisions of §§ 2 through 25 of article III are all related to the organization of the legislative department. The proposed new amendments, beginning with § 54 of article III, relate to establishment and enforcement of standards of conduct on a broad range of public officials, a subject heretofore found in article VII. That being true, it is necessary to find a readily identifiable and reasonably narrow single purpose to which 1) a general reorganization of the legislative department including the number of members and session length of the General Assembly, article III matters, and 2) the general regulation of the conduct of public officials, an article VII matter, are both related. These provisions are so diverse as to defy being connected to a single central purpose. Thus, the proposal fails to comply with the single subject requirement of article III, § 50.

VIII.

Appellants suggest the provisions of the proposal may be severable as an alternative to invalidating the entire initiative. They cite two Missouri cases that have discussed severability of provisions of an amendment. In State v. Thompson, 323 Mo. 742, 19 S.W.2d 642 (banc 1929), this Court severed a paragraph that appropriated fees to the state road fund without legislative action from an amendment authorizing an additional bond issue for the construction of state highways. This Court found the amendment complete in itself and sufficient to accomplish its purpose without the appropriation provision.

The factors that make a provision severable are set out in footnote 8 of the Buchanan case. These include whether the provision is essential to the efficacy of the amendment, whether it is a provision without which the amendment would be incomplete and unworkable, and whether the provision is one without which the voters would not have adopted the amendment. Buchanan v. Kirkpatrick, 615 S.W.2d at 13, n. 8.

In the case at hand, the proposed amendment contains more than a single subject. It is impossible to say the signers intended only to support those provisions related to the internal operation of the legislature or to endorse only those provisions related to the general regulation of the conduct of public officials.

Since it is impossible to identify a single central purpose, it is necessarily impossible to identify those provisions that are essential to the efficacy of the amendment so that they may be segregated out. The severability argument is without merit.

The conclusion of the trial court that the initiative petition proposal contains more than one subject is not erroneous. Accordingly, the judgment of the trial court is affirmed.

BLACKMAR, C.J., HIGGINS, COVINGTON, BILLINGS and HOLSTEIN, JJ., and MAUS, Special Judge, concur. RENDLEN, J., dissents in separate opinion to follow. ROBERTSON, J., not sitting.

1 . Section 116.200.3, RSMo 1986, purports to grant a party to an action such as this the right to appeal to the Supreme Court. However, our appellate jurisdiction is constitutionally defined and limited to specific situations, none of which exists here. See Mo.Const. art. V, § 3.

2 . References to statutes are to RSMo 1986 unless otherwise noted.

3 . "[W]hen a conjunction connects two coordinate clauses or phrases, a comma should precede the conjunction if it is intended to prevent following qualifying phrases from modifying the clause which precedes the conjunction." Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68, 74 (1946).

4 . Volume 3, Debates of the Missouri Constitution 1945 (March 14, 1944), contains the only discussion of the provision:

The Constitution also contains the usual restrictions that the amendments must be submitted so that the people may express their views upon one proposition rather than upon many propositions. It is general that the amendment must contain not more than one amended or revised Article of the Constitution and be so stated on the ballot that the choice may be made independently of the other propositions.

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Now, Section 2 is the same as Section 2 of the present Article, with the exception that it amplifies the article by directing attention to the fact that the requirement of a separate statement shall apply to the initiative. Also, it contains the change, which I believe is justly mentioned, that there are to be publications in two newspapers for two consecutive weeks. Otherwise, it is the substance of the present Section 2 of the Constitution, provided that the General Assembly may have proposed amendments, providing also that if they are proposed by Initiative that it shall contain not more than one amendment to the revised article. It is the same substance as the present Constitution and that again has been the part of the Constitution ever since 1875. I should like to move that that section be adopted and call for amendments.

PP. 580, 583-84 (from the statement of Mr. Phillips of Jackson).