No Bans on Choice, American Civil Liberties Union of Missouri, and Sara E. Baker v. John R. Ashcroft, in his official capacity as Missouri Secretary of State

• Court: Supreme Court of Missouri
• Decided: February 8, 2022
• Docket: SC98879
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc NO BANS ON CHOICE, AMERICAN ) Opinion issued February 8, 2022 CIVIL LIBERTIES UNION OF ) MISSOURI, and SARA E. BAKER, ) ) Respondents, ) ) v. ) No. SC98879 ) JOHN R. ASHCROFT, in his official ) capacity as Missouri Secretary of State ) ) Appellant. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E. Beetem, Judge

Amidst a ballot referendum campaign, Sara Baker, the ACLU of Missouri, and No

Bans on Choice (collectively, “Challengers”) filed suit against the Missouri Secretary of

State. The lawsuit challenged the constitutional validity of sections 116.180 and

116.334.2, 1 which prohibit the collection of referendum petition signatures before the

Secretary has certified the referendum’s “official ballot title” and affixed it to the petition.

The circuit court issued a declaratory judgment invalidating sections 116.180 and

116.334.2 because those provisions “interfere with and impede” the right of referendum

1 All statutory references are to RSMo 2016, unless otherwise specified. and, therefore, conflict with article III, sections 49 and 52(a) of the Missouri Constitution.

The judgment is affirmed.

Background

I. Referendum Process

The voters of Missouri first adopted a constitutional amendment establishing the

right of referendum more than 100 years ago in 1908. Marsh v. Bartlett, 121 S.W.2d

737, 742 (Mo. 1938). 2 The right of referendum is now contained in article III, sections

49 and 52(a) of the Missouri Constitution. Article III, section 49 states: “The people

reserve power to propose and enact or reject laws and amendments to the constitution by

the initiative, independent of the general assembly, and also reserve power to approve or

reject by referendum any act of the general assembly, except as hereinafter provided.”

Article III, section 52(a) further provides:

A referendum may be ordered ... by petitions signed by five percent of the legal voters in each of two-thirds of the congressional districts in the state .... Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly which passed the bill on which the referendum is demanded.

(Emphasis added). 3 The General Assembly is permitted to enact “reasonable

implementations” of the referendum process. State ex rel. Upchurch v. Blunt, 810

2 Missouri is one of 24 states that allows citizens to petition for elections on legislative enactments through a “popular referendum” without any involvement by the legislature. Initiative, Referendum, and Recall, Nat’l Conf. of State Legislatures, http://www.ncsl.org/legislatures-elections/elections/initiative-referendum-and-recall- overview.aspx (last visited Feb. 7, 2022). 3 Article III, section 20(a) of the Missouri Constitution designates May 30 as the date of the final adjournment of the General Assembly. Article III, section 52(a)’s deadline for filing referendum petitions within 90 days of the final adjournment of the legislative session coincides with article III, section 29 of the Missouri Constitution, which states that, with certain listed exceptions, laws 2 S.W.2d 515, 516 (Mo. banc 1991). A framework for exercising the right of referendum

was enacted by the legislature in chapter 116.

To initiate the process, the referendum proponent must first submit the proposed

petition “in the form in which it will be circulated” to the Secretary, who must then send

it to the Attorney General to conduct an independent review of its form and provide

comments within 10 days. Sections 116.332.1, .3. The Secretary has the ultimate

authority to approve or reject the form of the petition and must do so within 15 days after

the petition was first submitted and following the Attorney General’s review. Sections

116.332.3, .4. If the petition is approved, the Secretary is given 23 days to prepare a

“summary statement” of the measure, and the State Auditor must prepare a “fiscal note”

and “fiscal note summary.” Sections 116.334.1, 116.175.2. The Attorney General must

then issue an opinion about the form and content of the summary statement and fiscal

note summary. Sections 116.175.4, 116.334.1. Within three days of receiving the

Attorney General’s approval for both summaries, the Secretary must combine those

summaries to create the “official ballot title,” which must be placed on the ballot measure

if it is put before the voters. Sections 116.010(4), 116.180. In sum, it may take up to 51

days from the time the proponent first submits the proposed petition until the official

ballot title is certified.

passed by the General Assembly shall take effect 90 days after the final adjournment of the General Assembly. Together, these three provisions designate August 28 as both the deadline for filing referendum petitions and the date on which laws passed during the previous session of the General Assembly take effect. 3 Until 1997, proponents were able to circulate the referendum petition for

signatures before the ballot title was certified. But, in that year, the legislature amended

chapter 116 and enacted sections 116.180 and 116.334.2 to prohibit the circulation of

referendum petitions before the official ballot title is certified and affixed to the petition.

As a result of this legislation, a referendum proponent may be delayed up to 51 days

before collecting signatures to have the measure placed on the ballot.

II. 2020 Referendum Effort

The General Assembly passed House Bill No. 126 on May 17, 2019, the last day

to pass legislation during the 2019 session, and the bill was signed by Governor Parson

on May 24. 4 Four days later, Baker, on behalf of the ACLU, submitted a proposed

referendum petition on HB 126 to Secretary of State Ashcroft, seeking to place it on the

ballot for the 2020 general election. On June 6, 2019, the Secretary notified Baker and

the ACLU he was rejecting the proposed referendum petition because HB 126 contained

an emergency clause, requiring some of its provisions to become effective immediately.

The Secretary concluded the emergency clause exempted the entire bill from the

referendum process because legislation may not be challenged via referendum after it

becomes effective. See State ex rel. Moore v. Toberman, 250 S.W.2d 701, 706 (Mo. banc

1952).

Baker and the ACLU sued the Secretary, alleging such constitutional grounds

were not a sufficient basis for rejecting the proposed petition. The circuit court ruled in

4 HB 126 repealed sections 188.027 and 188.052 and enacted sections 188.026, 188.027, and 188.052 in lieu thereof. 4 Secretary to immediately approve the sample sheet of the referendum petition as

sufficient as to form pursuant to section 116.332.4 and proceed with the official ballot

title certification process. ACLU v. Ashcroft, 577 S.W.3d 881, 899-900 (Mo. App. 2019).

At that time, the Secretary and Attorney General had 36 days to complete the certification

process pursuant to sections 116.334.1, 116.175.2, 116.175.4, and 116.180. The ACLU

asked the court of appeals to shorten the statutory timeframe for certification to offset the

delay caused by the emergency litigation, but the court ruled it had “no authority to

modify the provisions of that statute, including the times therein permitted for

performance.” Ashcroft, 577 S.W.3d at 900 n.21. 5

State officials ultimately used all 36 days to complete the official ballot title

certification. The Secretary did not certify the official ballot title and approve the petition

for signature circulation until August 14, 2019. As a result, Baker and the ACLU were

left with 14 days to circulate the petition and submit 107,510 signatures to the Secretary

in accordance with article III, section 52(a). 6 On August 22, Challengers filed suit in the

circuit court against the Secretary, arguing sections 116.180 and 116.334.2 violated the

Missouri Constitution in that they conflicted with the right of referendum under article

III, sections 49 and 52(a). Baker and the ACLU ultimately failed to collect the requisite

signatures within the 14-day timeframe, and the referendum was not placed on the ballot.

5 The ACLU filed an emergency motion for rehearing or transfer, arguing those statutory timeframes were unconstitutional as applied in the case. The court of appeals overruled the motion. The ACLU then applied to this Court for transfer, which this Court denied. 6 Article III, section 52(a) requires referendum petitions to be signed by 5 percent of registered voters in two-thirds of Missouri’s congressional districts to be placed on the ballot. 5 The circuit court subsequently issued a declaratory judgment that sections 116.180 and

116.334.2 were unconstitutional because they conflicted with article III, sections 49 and

52(a) in that they “interfere with and impede” the right of referendum. 7

Standard of Review

If a statute conflicts with a constitutional provision, this Court must declare that

statute invalid. Upchurch, 810 S.W.2d at 516. The validity of a statute is a question of

law reviewed de novo. Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., 603

S.W.3d 286, 290 (Mo. banc 2020). A statute is presumed valid and will not be declared

unconstitutional unless it clearly contravenes a constitutional provision. Id.

Analysis

The issue before this court is whether sections 116.180 and 116.334.2 violate the

right to referendum as found in article III, sections 49 and 52(a) of the Missouri

Constitution. In establishing the right of referendum, the people of Missouri

constitutionally reserved a share of the legislative power for themselves. State ex rel.

Barrett v. Dallmeyer, 245 S.W. 1066, 1068 (Mo. banc 1922). 8 The purpose of this right

7 This Court has jurisdiction pursuant to article V, section 3 of the Missouri Constitution. 8 Immediately following its creation, the referendum was widely used. David C. Valentine, Constitutional Amendments, Statutory Revision and Referenda Submitted to the Voters by the General Assembly or by Initiative Petition, 1910-2008, Report 25-2008, at 3, https://mospace.umsystem.edu/xmlui/bitstream/handle/10355/2524/ConstitutionalAmend mentsStatutoryRevision.pdf?sequence=1&isAllowed=y. While it has been used more sparingly in the decades since, when the right to referendum is employed, voters are more often than not inclined to exercise the power reserved for them; 24 of the 26 referenda put before the voters between 1914 and 2008 have resulted in the rejection of bills enacted by the General Assembly. Id. at 2. Voters also struck down the General Assembly’s “right to work” bill in the only referendum put on the ballot since 2008. Scott Neuman, Missouri Blocks Right-to-Work Law, NPR, Aug. 8, 2018, https://www.npr.org/2018/08/08/636568530/missouri-blocks-right-to-work- law (last visited Feb. 7, 2022). 6 is to “provide the people a means of giving expression to a legislative proposition[.]”

Toberman, 250 S.W.2d at 706. The referendum process ensures that “those who have no

access to or influence with elected representatives may take their cause directly to the

people.” Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827

(Mo. banc 1990). The referendum also exists to serve as a check on the legislature. State

ex rel. Drain v. Becker, 240 S.W. 229, 230-31 (Mo. banc 1922).

Legislation to implement the referendum process is presumed to be

constitutionally valid. Rekart v. Kirkpatrick, 639 S.W.2d 606, 608 (Mo. banc 1982). But

laws enacted to implement the referendum process must be invalidated when they

“interfere with or impede a right conferred by the constitution[.]” Id. In other words,

“[m]inor details may be left for the legislature without impairing the self-executing nature

of constitutional provisions ... but all such legislation must be subordinate to the

constitutional provision and in furtherance of its purposes, and must not ... attempt to

narrow or embarrass it.” Musser v. Conrod, 496 S.W.2d 8, 11 (Mo. banc 1973).

The circuit court concluded sections 116.180 and 116.334.2 unconstitutionally

“interfere with and impede” the right of referendum. 9 It determined that, by prohibiting

9 The Secretary asserts several arguments for why the circuit court should not have reviewed Challengers’ claim on the merits. First, the Secretary argues Challengers’ claim was barred by res judicata and waiver due to Baker and the ACLU’s previous litigation against the Secretary. Res judicata requires the new claim to arise out of the same act, contract or transaction as the previous claim. Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 716 (Mo. banc 2008). But the prior litigation arose out of the Secretary’s rejection of the proposed referendum petition, which was an entirely separate issue from the validity of sections 116.180 and 116.334.2. While the parties did challenge the ballot title provisions to the extent they could in the course of the prior lawsuit, the constitutional validity of those provisions was not reviewed on the merits. See ACLU v. Ashcroft, 577 S.W.3d at 900 n.21. Similarly, Challengers’ claim was not waived because the time constraints on circulation imposed by sections 116.180 and 7 proponents from circulating a petition before the official ballot title is certified and

affixed to the petition, the challenged statues “dramatically reduce the time available for

the circulation of a referendum petition, both in theory and in practice.” In reaching its

decision, the circuit court cited three of this Court’s prior decisions to support the

proposition that the State “may not constitutionally delay the circulation of a referendum

petition for the purpose of certifying a ballot title.”

In the first case cited by the circuit court, Boeving v. Kander, 496 S.W.3d 498, 507

(Mo. banc 2016), this Court explained that the Missouri Constitution “only authorizes

legislation detailing the requirement for an ‘official ballot title’ at the time [a] proposed

constitutional amendment is put before the voters” and that there is “no similar express

constitutional authorization” for legislation requiring an official ballot title before the

petition may be circulated for signatures. This Court explicitly noted, however, that the

question of whether such a pre-circulation ballot title requirement would be

constitutionally permissible was not presented in the case. Id. at 508.

116.334.2 did not affect Baker and the ACLU until after the court of appeals ordered the Secretary to commence the ballot title certification process. As such, the parties did not fail to present their constitutional question “at the earliest possible moment that good pleading and orderly procedure will admit ....” Meadowbrook Country Club v. Davis, 384 S.W.2d 611, 612 (Mo. banc 1964) (internal quotation omitted). The Secretary also argues Challengers’ claim was not justiciable. Challengers, however, clearly had standing to challenge sections 116.180 and 116.334.2 in the midst of their referendum campaign. While the claim may have been rendered moot once the deadline to submit signatures to the Secretary came to pass, the time-sensitive nature of the referendum process would place the claim squarely within the mootness exception of “capable of repetition, yet evading review.” See State ex rel. Reser v. Rush, 562 S.W.2d 365, 367 (Mo. banc 1978) (“The problem presented is one which is ‘capable of repetition, yet evading review,’ and needs to be resolved and put to rest. Accordingly, notwithstanding the suggestion of mootness, we will decide the case on the merits, being of opinion that the questions involved are matters of public rights or interests under conditions which may be repeated any time.” (internal citation omitted)). 8 In the second case, Union Electric Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo.

banc 1984), this Court held that, although the proponent’s title on a proposed ballot

initiative did not express clearly the subject matter of the proposal, petition signers could

not have been deceived or misled at this stage of the initiative process because the full act

appeared on the back of each petition. In the third case, United Labor Committee of

Missouri v. Kirkpatrick, 572 S.W.2d 449, 454 (Mo. banc 1978), this Court noted that

previous decisions “discussed the importance of the initiative and referendum,

emphasizing that procedures designed to effectuate these democratic concepts should be

liberally construed to avail the voters with every opportunity to exercise these rights.”

United Labor held: “The ability of the voters to get before their fellow voters issues they

deem significant should not be thwarted in preference for technical formalities.” Id.

Together, these cases suggest that an official ballot title is not necessary to prevent

individuals from being deceived at the petition-signing stage and that the ability to

exercise the constitutional right of referendum should not be “interfered with or impeded”

by a pre-circulation ballot title requirement.

The Secretary contends sections 116.180 and 116.334.2 leave sufficient time to

gather signatures in “virtually all circumstances.” But Challengers argue the process of

procuring the official ballot title prior to circulation is quite time-consuming. As the

circuit court explained, the full signature-collection period for a referendum on a measure

passed on the last day of the legislative session is only 90 days, and sections 116.180 and

116.334.2 “permit the government to take away 51 of those days.” The Secretary points

to testimony presented by Challengers indicating an organization could feasibly collect

9 the requisite number of signatures within 39 days under the worst-case scenario. But not

every citizen who may wish to utilize the right of referendum has access to the same

resources as Challengers. For example, Baker testified that, in the time leading up to the

signature-collection stage, she solicited contributions from donors who had sufficient

available funds to pay a firm that specializes in signature-gathering. And the circuit court

found “every day the time for signature collection on a referendum petition is reduced,

the cost of gathering enough signatures to get the referendum before voters will go up.”

The Missouri Constitution guarantees the right of referendum to all Missouri citizens, not

just those capable of raising the necessary funds to complete a signature-collection effort

within the tightest of timeframes.

In practice, the pre-circulation ballot title requirement has indeed proved to be a

hinderance to the referendum process. The circuit court determined the average amount

of time the State took to certify official ballot titles between 2016 and 2020 ranged from

35 to 47 days. For bills passed on the last day of session, this delay constitutes from

more than one-third to more than one-half of the 90 days allotted for petition circulation.

Further, since the challenged statutes were enacted in 1997, only one referendum

campaign, the 2018 challenge to the “right-to-work” bill, collected enough timely

signatures to have the measure placed on the ballot. That campaign also benefitted from

the challenged legislation being signed by the governor on February 6, 2017, which was

113 days before the final adjournment of the legislative session and, therefore, 203 days

before the deadline to file a referendum petition under article III, section 52(a).

10 The legislature inherently has the power to reduce the time to circulate a

referendum petition on any particular piece of legislation by delaying the passage of that

legislation until the end of the legislative session. But by significantly reducing the

allotted circulation period even further, sections 116.180 and 116.334.2 afford the

legislature the opportunity to “interfere with or impede” the right of referendum by, in

effect, controlling the viability of any referendum. The dissent notes that the legislature

may pass legislation before the end of the legislative session and accordingly leave

referendum proponents more than 90 days to circulate a petition for signatures, even

when state officials use the full 51 days to complete the official ballot title certification

process. But regardless of if or when the legislature chooses to pass legislation during its

session, sections 116.180 and 116.334.2 “interfere with and impede” the right of

referendum because they give the legislature the power to make any referendum effort

untenable.

The Secretary argues that, to declare sections 116.180 and 116.334.2 invalid, this

Court must determine that a referendum proponent could never successfully collect

enough timely signatures to have a measure placed on the ballot. See State v. Jeffrey, 400

S.W.3d 303, 308 (Mo. banc 2013) (“Generally, to prevail in a facial challenge, the party

challenging the statute must demonstrate that no set of circumstances exists under which

the statute may be constitutionally applied.”). 10 But the standard for determining if a law

10 While the Secretary argued before the circuit court that sections 116.180 and 116.334.2 do not conflict with the Missouri Constitution, the Secretary never asserted that the Challengers must show there are no set of circumstances under which sections 116.180 and 116.334 could be constitutionally applied to prevail on their claim. As such, the Secretary arguably failed to 11 violates article III, sections 49 and 52(a) is whether the law “interferes with or impedes”

the right of referendum, not whether it “interferes with or impedes” any particular

referendum effort. See Rekart, 639 S.W.2d at 608. A law need not prevent every

individual referendum effort from being successful to “interfere with or impede” the right

of referendum itself. Consequently, because sections 116.180 and 116.334.2 “interfere

with and impede” the right of referendum, they can never be constitutionally applied.

As this Court has emphasized, the establishment of the constitutional right of

referendum was a fundamental expression of the power held by the people:

Under our system, that intangible thing we call “government,” the existence of which is least felt when best administered, has its origin in and draws its life and inspiration from the people. They frame and adopt the organic law, which defines the limits of legislative action; they incorporate therein whatever provisions they may deem proper. Thus empowered, as are the people in all governments organized as is ours, the inevitable conclusion follows that if they determine, as they have in the adoption of the initiative and referendum, to limit the province or modify the purview of the Legislature in the adoption or rejection of laws, there is no power that can say them nay.

....

To any one familiar with the power for good or ill which the Legislature may wield, it cannot but be regarded as an act of prudence that the people, the repository of all power, and vitally interested in all that pertains to the conduct of public affairs, should reserve unto themselves the right to correct any evils which may result from unwise legislation.

preserve this argument for appellate review. See State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011) (“Because an appellate court is not a forum in which new points will be considered ... only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.” (internal quotation omitted)). Nevertheless, this Court will assume, arguendo, that the argument was properly preserved and address it on the merits. 12 Becker, 240 S.W. at 230-31. The legislature must not be permitted to use procedural

formalities to interfere with or impede this constitutional right that is so integral to

Missouri’s democratic system of government.

Conclusion

Sections 116.180 and 116.334.2’s prohibition on collecting referendum petition

signatures prior to the Secretary’s certification of the official ballot title “interferes with

and impedes” the constitutional right of referendum reserved to the people by

unreasonably shortening the timeframe for petition circulation. As such, the circuit

court’s judgment declaring those statutes constitutionally invalid is affirmed.

______________________________ Mary R. Russell, Judge

Wilson, C.J., Breckenridge, Draper, Ransom, JJ., concur; Powell, J., dissents in separate opinion filed; Fischer, J., concurs in opinion of Powell, J.

13 SUPREME COURT OF MISSOURI en banc NO BANS ON CHOICE, AMERICAN ) CIVIL LIBERTIES UNION OF ) MISSOURI, and SARA E. BAKER, ) ) Respondents, ) ) v. ) No. SC98879 ) JOHN R. ASHCROFT, in his official ) capacity as Missouri Secretary of State, ) ) Appellant. )

DISSENTING OPINION

I respectfully dissent because Sara Baker, the ACLU of Missouri, and No Bans on

Choice (collectively, “Challengers”) have not demonstrated sections 116.180 and

116.334.2 are facially invalid. 1 While Challengers’ referendum rights may have been

interfered with or otherwise impeded in the past, Challengers do not seek relief from the

application of sections 116.180 and 116.334.2 during their previous ballot referendum

campaign. As the principal opinion notes, Challengers specifically requested in their

petition, and the circuit court ultimately granted, declaratory relief outright invalidating

1 All statutory references are to RSMo 2016. both statutes in all situations. Challengers, therefore, do not challenge the application of

the statutes as they were applied to them in the past. Rather, Challengers mount a facial

challenge seeking to invalidate the applications of the statutes for everyone going forward.

Because circumstances exist in which sections 116.180 and 116.334.2 may be applied

without interfering with or impeding the constitutional right of referendum guaranteed in

article III, sections 49 and 52(a) of the Missouri Constitution, Challengers’ facial challenge

seeking to invalidate these statutes must be rejected.

“This Court reviews the constitutional validity of statutes de novo.” Fowler v. Mo.

Sheriffs’ Ret. Sys., 623 S.W.3d 578, 584 (Mo. banc 2021) (internal quotation omitted). The

Court presumes a statute is constitutional, finding it unconstitutional only if “it clearly and

undoubtedly contravenes the constitution.” Adams By and Through Adams v. Children’s

Mercy Hosp., 832 S.W.2d 898, 903 (Mo. banc 1992), overruled on other grounds by Watts

v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 636 (Mo. banc 2012). “In order to mount a

facial challenge to a statute, the challenger must establish that no set of circumstances exists

under which the [statute] would be valid.” Donaldson v. Mo. State Bd. of Registration for

the Healing Arts, 615 S.W.3d 57, 66 (Mo. banc 2020) (alteration in original). Courts

should rarely tolerate facial challenges to the constitutional validity of a statute:

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to

2 which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008)

(alteration in original) (internal quotation and citation omitted).

Article III, section 52(a) provides, “Referendum petitions shall be filed with the

secretary of state not more than ninety days after the final adjournment of the session of

the general assembly which passed the bill on which the referendum is demanded.” The

Missouri Constitution therefore, guarantees referendum proponents only 90 days to collect

the necessary signatures to place the referendum on the ballot because referendum-

contested legislation may be passed on the last day of the legislative session. While the

legislature may neither “impede” nor “interfere” with the right of referendum, Rekart v.

Kirkpatrick, 639 S.W.2d 606, 608 (Mo. banc 1982), the legislature has the power to enact

reasonable, practical regulations to address the realities of implementing a constitutional

right. State ex rel. Upchurch v. Blunt, 810 S.W.2d 515, 516 (Mo. banc 1991) (noting the

legislature may “enact reasonable implementations of a constitutional directive”). As long

as legislatively enacted regulations to the referendum process do not limit the 90 days set

aside to collect signatures and submit petitions to the Secretary of State, the regulations

would not interfere with or impede the time period guaranteed by the right of referendum

and would be presumably reasonable and practical. Adams, 832 S.W.2d at 903 (The Court

presumes a statute is constitutional, finding it unconstitutional only if “it clearly and

undoubtedly contravenes the constitution.”).

3 Of course, the legislature may pass legislation before the end of the legislative

session. Referendum proponents accordingly would enjoy in excess of the 90 days to

collect signatures and comply with the relevant statutory regulations, even if state actors

took the full 51 days Missouri statutes permit for reviewing and certifying the ballot title. 2

In such a circumstance, the referendum regulations would neither impede nor interfere with

the 90 days set aside by the Missouri Constitution to collect signatures and submit the

referendum petitions to the Secretary of State. Because the legislature may enact

reasonable, practical regulations to the referendum process and circumstances exist in

which sections 116.180 and 116.334.2 would not impede or interfere with the right of

referendum, Challengers’ facial challenge lacks merit, and the circuit court erred in

invalidating these statutes.

The principal opinion insinuates the Secretary of State (“State”) failed to preserve

its facial challenge argument by neglecting to raise the argument before the circuit court.

The mere suggestion that the State’s facial challenge argument is unpreserved and

unreviewable is untenable for many reasons. First, the State did answer Challengers’

claims, vehemently asserting the statutes were constitutional. 3 Admittedly, the State cited

no caselaw pertinent to facial constitutional challenges, but this omission is

inconsequential. Even if the State had utterly failed to contend sections 116.180 and

116.334.2 were constitutional, which it did not, this Court could not eschew its duty to

2 See §§ 116.332.1, .3, .4; § 116.334.1; §§ 116.175.2, .4; § 116.010(4); § 116.180. 3 The State did so in its motion to dismiss, the affirmative defenses listed its answer to Challengers’ amended petition, and its pretrial brief. 4 conduct de novo review applying controlling precedent to the circuit court’s judgment

declaring sections 116.180 and 116.334.2 unconstitutional and invalidating acts of the

legislature. 4 As the principal opinion concedes, “[t]his Court reviews the constitutional

validity of statutes de novo.” Fowler, 623 S.W.3d at 584 (internal quotation omitted). It

also presumes statutes are constitutional. Adams, 832 S.W.2d at 903. Challengers, not the

State, have the burden of rebutting this presumption and demonstrating the reasons their

claim merits the relief requested. Id. In conducting de novo review of a properly presented

challenge to the constitutional validity of a statute, this Court has no authority to relieve

Challengers of that burden of persuasion by requiring the State, or any other party, to make

arguments supporting the validity of the statute.

These principles reflect this Court’s constitutional function: “It is emphatically the

province and duty of the judicial department to say what the law is.” Marbury v. Madison,

5 U.S. 137, 177 (1803) (holding American courts may invalidate laws and statutes in

conflict with the United States Constitution); see also Mo. Const. art. V, sec. 1 (“The

judicial power of the state shall be vested in a supreme court[.]”); Mo. Const. art. V, sec. 3

(“The supreme court shall have exclusive appellate jurisdiction in all cases involving the

validity of … a statute or provision of the constitution of this state[.]”). This Court cannot,

and should not, relinquish its constitutional duty to review the validity of a statute merely

4 A court could not raise constitutional challenges sua sponte on behalf of the party seeking to strike down the statute. Such an act would put this Court in a position of advocacy, hinder its constitutional purpose of impartial review, and, therefore, would violate separation of powers. See e.g., White v. U. S. Pipe & Foundry Co., 646 F.2d 203, 204 (5th Cir. 1981). The Court, however, does not act as an advocate when it independently retrieves caselaw supporting constitutional validity in a de novo review. 5 because the State failed to identify the proper standard of review of a facial challenge in its

argument to the circuit court. If this were possible, the State could collude with other

litigants to orchestrate outcomes by declining to faithfully defend statutes and narrowing

the scope of the caselaw reviewable by this Court. 5 The State, acting through the Attorney

General, would become the ultimate arbiter of a statute’s constitutional validity. 6 The

Missouri Constitution charges this Court, not the Attorney General or any other member

of the executive branch, with exercising its judicial power to review a proper challenge to

the constitutional validity of a statute. Mo. Cont. art. V, § 1. This review necessarily

includes considering this Court’s precedents regardless of whether the State, or any other

party supporting the constitutional validity of a statute, has properly presented and briefed

the circuit court on the law related to facial challenges.

5 Say, for example, a group of litigants filed an action mounting a facial challenge to a statute on the grounds that it violated the right to have an abortion guaranteed by Roe v. Wade, 410 U.S. 113 (1973). If the State, acting through the Attorney General, agreed with the litigants’ viewpoint and purposefully limited its defense of the statute by raising only irrelevant arguments and abstained from mentioning law pertinent to facial challenges, would this Court be precluded from conducting its own review of the merits of the litigants’ constitutional claims? 6 Such action would likely also violate article II, section I of the Missouri Constitution, which prohibits each branch of government from exercising powers granted to a different branch. 6 Conclusion

For these reasons, I disagree with the principal opinion’s analysis and conclusion

that sections 116.180 and 116.334.2 facially violate the right of referendum contained in

article III, sections 49 and 52(a) of the Missouri Constitution. I would reject Challengers’

arguments and reverse the circuit court’s judgment.

___________________ W. Brent Powell, Judge