Quinton Lucas v. Missouri Secretary of State John R. Ashcroft and Missouri State Auditor Scott Fitzpatrick

• Court: Supreme Court of Missouri
• Decided: April 30, 2024
• Docket: SC99931
• Status: Published

Opinion

SUPREME COURT OF MISSOURI en banc QUINTON LUCAS, ) Opinion issued April 30, 2024, ) and modified on the Court’s own Contestant, ) motion June 4, 2024 ) v. ) No. SC99931 ) MISSOURI SECRETARY OF STATE ) JOHN R. ASHCROFT AND ) MISSOURI STATE AUDITOR ) SCOTT FITZPATRICK, ) ) Contestees. )

ORIGINAL PROCEEDING: ELECTION CONTEST

Quinton Lucas brings an original action in this Court challenging the voters’

approval of Amendment No. 4 in the November 2022 general election. Specifically,

Lucas claims the fiscal note summary printed on every ballot cast in that election

materially misstated the fiscal note for the measure.

This case is not about whether the Kansas City Police Department is adequately

funded or, if not, the amount of additional funds that would be needed to do so. Nor is

this case about whether the auditor’s fiscal note for Amendment No. 4 was sufficient and

fair. The former is a matter for Kansas City and the Board of Police Commissioners, not this Court, and the latter could have been challenged under section 116.190 1 before the

election but was not. Instead, the only issue in this case is whether the auditor’s fiscal

note summary – the very last thing each and every voter saw before voting “yes” or “no”

on Amendment No. 4 – fairly and accurately summarized the auditor’s fiscal note as

required by section 116.175.3. This Court concludes it did not and, therefore, orders a

new election on this question to be conducted on August 6, 2024.

BACKGROUND

Kansas City (“City”) does not control the budget for the Kansas City Police

Department (“Department”). Instead, that budget is overseen by the Board of Police

Commissioners (“Board”). The Board is a state agency with five members. Since 1958,

the City has been obligated to provide funds for the Department at whatever amount the

Board requests, subject to a maximum set by statute. See § 84.730, RSMo Supp. 1958.

Between 1958 and 2022, the City’s funding obligation was capped at 20 percent of the

City’s general revenue, though the City was free to (and, at times, did) provide requested

funding in excess of that cap.

A dispute arose in 2021 between the City and the Board regarding the use of funds

the City appropriated in excess of the statutory maximum. In May 2021, the City

Council passed two ordinances reallocating funds appropriated above the cap to certain

community policing initiatives. After the City passed these ordinances, the general

assembly took up two measures that would change the City’s funding obligation to the

1 All statutory references are to RSMo 2016 unless otherwise noted.

2 Board. The first of these measures, Senate Bill No. 678 (“SB 678”), increased the City’s

statutory maximum funding obligation from 20 percent of the City’s general revenue to

25 percent. Concerned that SB 678 might constitute an unfunded mandate under article

X, sections 16 and 21 of the Missouri Constitution, the general assembly also took up

Senate Joint Resolution No. 38 (“SJR 38”), which proposed a constitutional amendment

exempting certain legislation related to police funding (including SB 678) from

article X’s prohibition against unfunded mandates. On May 18, 2022, the general

assembly passed both SB 678 and SJR 38. The proposed constitutional amendment in

the latter was put before the voters as Amendment No. 4.

Missouri statutes provide that, when a proposed constitutional amendment is put to

the voters, the text of the measure does not appear on the ballot. Rather, printed on the

ballot is a “ballot title” consisting of two parts. § 116.010(4). The first part of the ballot

title is a summary statement of the measure in the form of a question, which is prepared

by the secretary of state (or the general assembly may do so when it proposes the

constitutional amendment). §§ 116.010(4), 116.155, 116.160. The second part is a

summary of the fiscal note for the measure. §§ 116.010(4), 116.170. Both the fiscal note

and the summary of that fiscal note are prepared by the state auditor, though the general

assembly may (but is not required to) prepare the fiscal note summary for constitutional

amendments it proposes. §§ 116.155, 116.170.

For Amendment No. 4, the general assembly prepared the summary statement, and

the auditor prepared the fiscal note and the fiscal note summary. The ballot title for

Amendment No. 4, in its entirety, read:

3 Shall the Missouri Constitution be amended to authorize laws, passed before December 31, 2025, that increase minimum funding[ 2] for a police force established by a state board of police commissioners to ensure such police force has additional resources to serve its communities?

State and local governmental entities estimate no additional costs or savings related to this proposal.

On November 8, 2022, Missouri voters approved Amendment No. 4. Lucas

timely brought an election contest in this Court seeking a new election under sections

115.555 and 115.593.

ANALYSIS

The only issue in this case is whether the fiscal note summary for Amendment

No. 4 so materially misstated the fiscal note and misled the voters about the fiscal note’s

contents that it constituted an irregularity of sufficient magnitude to cast doubt on the

fairness of the election and the validity of the results. 3 The Court concludes it did. A

new election is the only remedy authorized by statute for such circumstances. § 115.593.

Accordingly, the Court orders that remedy.

I. This Court Has Original Jurisdiction in This Election Contest

2 The general assembly refers to the cap on the City’s obligation to provide requested funds to the Department as “minimum funding,” but the parties have referred to it as the “maximum funding obligation.” Both phrases refer to the 20 percent cap that was raised to 25 percent in SB 678. For convenience, the Court follows the latter convention. 3 Nothing in this opinion, including the new fiscal note summary specified herein, shall be taken as expressing any opinion as to the enforceability of SB 678, either in the event the voters approve Amendment No. 4 in the August 2024 election or in the event the voters reject it. 4 Lucas contends this Court has original jurisdiction to hear election contests

involving a proposed constitutional amendment and, therefore, filed his petition in this

Court in the first instance. The secretary of state and the auditor 4 (collectively, the

“state”) concede this Court has jurisdiction, citing section article VII, section 5 of the

Missouri Constitution, which states the “general assembly shall designate by general law

the court or judge by whom the several classes of election contests shall be tried[,]” and

section 115.555, which designates this Court to hear contests involving proposed

constitutional amendments. 5

That the parties considered this a settled question is not surprising. This Court

held it had original jurisdiction over such matters in Dotson v. Kander, 464 S.W.3d 190,

193 n.2 (Mo. banc 2015) (“This Court has jurisdiction to hear this [chapter 115 election

contest] pursuant to Mo. Const. art. VII, sec. 5 and section 115.555.”), and Shoemyer v.

Missouri Secretary of State, 464 S.W.3d 171, 172 n.1 (Mo. banc 2015) (citing Dotson

and Gantt v. Brown, 149 S.W. 644, 646 (Mo. banc 1912)). As discussed below, these

cases were correctly decided. Even if they were not, however, stare decisis requires this

Court to follow Dotson and Shoemyer and hold it has original jurisdiction in this case.

4 The actions attributed to the state auditor occurred under a different administration, but the current auditor is substituted automatically by operation of Rule 52.13(d). Moreover, it appears the auditor was never a proper party. Section 115.553.2 provides the proper contestee is the “officer or election authority responsible for issuing the statement setting forth the result of the election” being challenged. Here, that officer is the secretary of state. 5 Section 115.555 provides “all contests to the results of elections on constitutional amendments … shall be heard and determined by the supreme court.”

5 A. Stare Decisis Requires This Court to Follow Dotson and Shoemyer

Our common law system has developed on the assumption legal precedents must

be followed. See William Blackstone, Commentaries on the Laws of England, Book the

First 69 (Lewis ed. 1900); Randy J. Kozel, Stare Decisis as Authority and Aspiration, 96

Notre Dame L. Rev. 1971, 1978-81 (2021) (discussing the historical recognition of stare

decisis as a legal principle). This principle, the doctrine of stare decisis, ensures similar

cases are treated similarly in accordance with basic principles of justice. See Patterson v.

McLean Credit Union, 491 U.S. 164, 172 (1989) (“[I]t is indisputable that stare decisis is

a basic self-governing principle within the Judicial Branch, which is entrusted with the

sensitive and difficult task of fashioning and preserving a jurisprudential system that is

not based upon ‘an arbitrary discretion.’” (quoting The Federalist No. 78, (Alexander

Hamilton))), superseded on other grounds by 42 U.S.C. § 1981. Stare decisis “permits

society to presume that bedrock principles are founded in the law rather than in the

proclivities of individuals[.]” Vasquez v. Hillery, 474 U.S. 254, 265 (1986). Thus,

“[m]ere disagreement by the current Court … is not a satisfactory basis for violating the

doctrine of stare decisis[.]” Crabtree v. Bugby, 967 S.W.2d 66, 71-72 (Mo. banc 1998),

overruled on other grounds by Templemire v. W & M Welding, Inc., 433 S.W.3d 371

(Mo. banc 2014). In this way, stare decisis “promotes security in the law,” Templemire,

433 S.W.3d at 379 (internal quotation omitted), and “contributes to the integrity of our

constitutional system of government, both in appearance and in fact.” Vasquez, 474 U.S.

at 265-66.

6 Of course, judicial precedent is not absolute. While precedent must be followed to

prevent the arbitrary interpretation and application of the law, departure from precedent is

warranted when the application of prior decisions would be “evidently contrary to

reason” or “flatly absurd or unjust.” Blackstone, supra, at 70. This Court has also

indicated departure from precedent is warranted when it results in “recurring injustice or

absurd results,” Crabtree, 967 S.W.2d at 71-72; the precedent is demonstrated

unreasonable or incorrect through the passage of time and experience, Medicine Shoppe

Int’l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334-35 (Mo. banc 2005); or it is “clearly

erroneous and manifestly wrong.” Templemire, 433 S.W.3d at 379. None of these

exceptions applies to Dotson and Shoemyer.

This is the first election contest since these cases were decided, so it cannot be

suggested their holdings have resulted in recurring injustice or have been shown to be

unreasonable or incorrect through the passage of time and experience. Whether one

agrees with the basis for Dotson and Shoemyer set forth below, it cannot be argued the

holdings in those cases are evidently contrary to reason, flatly absurd or unjust, or clearly

erroneous and manifestly wrong.

Accordingly, the enduring rationales and principles underlying the doctrine of

stare decisis require this Court adhere to the holding in Dotson and Shoemyer. “The

doctrine of stare decisis promotes security in the law[,]” Templemire, 433 S.W.3d at 379

(internal quotation omitted), and reliance on the law as interpreted by the courts is a key

factor in the stare decisis analysis. Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020)

7 (“[W]hen it revisits a precedent [the United States Supreme] Court has traditionally

considered … reliance on the decision.” (internal quotation omitted)).

Lucas brought his election contest in this Court as section 115.555 expressly

requires and as this Court’s decisions in Dotson and Shoemyer hold he must. Foreclosing

his claims now, in spite of this justified reliance, would result in an injustice because it

would leave him unable to bring these claims in any court of law. 6 Fundamental

considerations of justice and fairness necessitate following the holdings in Dotson and

Shoemyer to avoid such an injustice.

B. Dotson and Shoemyer Were Correctly Decided

The doctrine of stare decisis aside, Dotson and Shoemyer should be followed

because they were correctly decided. See Jefferson Cnty. 9-1-1 Dispatch v. Plaggenberg,

645 S.W.3d 473, 475 (Mo. banc 2022) (holding this Court has an obligation to ensure its

own jurisdiction). But, because the analysis in Dotson and Shoemyer was somewhat

conclusory, a fuller discussion of this issue is warranted.

Article V of the Missouri Constitution addresses this Court’s jurisdiction to hear

and decide cases and, generally, gives this Court only appellate jurisdiction with limited

original jurisdiction to hear certain petitions for remedial writs. Mo. Const. art. V,

§§ 3, 4. Other constitutional provisions, however, can give this Court original

6 The only provision in the election contest statutes allowing for the results of elections on constitutional amendments to be challenged is section 115.555, which provides for such contests to be brought in this Court. If that statute is unconstitutional, there is no other statute giving any other court jurisdiction to hear this matter; therefore, there would be no appropriate court for Lucas or any future contestants to bring such claims.

8 jurisdiction over specific matters or give the general assembly authority to decide which

courts will have original jurisdiction over other matters. Article VII, section 5 does both:

Section 5. Election contests – executive state officers – other election contests. Contested elections for governor, lieutenant governor and other executive state officers shall be had before the supreme court in the manner provided by law, and the court may appoint one or more commissioners to hear the testimony. The trial and determination of contested elections of all other public officers in the state, shall be by courts of law, or by one or more of the judges thereof. The general assembly shall designate by general law the court or judge by whom the several classes of election contests shall be tried and regulate the manner of trial and all matters incident thereto; but no law assigning jurisdiction or regulating its exercise shall apply to the contest of any election held before the law takes effect.

Mo. Const. art. VII, § 5 (emphasis added). The language of section 5 is clear, and it

unambiguously authorizes the general assembly to “designate” this Court as the proper

one for contests involving proposed constitutional amendments and other ballot

propositions. The general assembly exercised that authority in section 115.555.

The first sentence in section 5 gives this Court original jurisdiction over election

contests involving statewide executive branch officers. The second sentence provides

that election contests involving “all other public officers in the state” shall be heard by

“courts of law.” Together, the first and second sentences pertain to the entire field of

election contests involving public officers in the state and divide them into two classes,

i.e., those over which this Court will have original jurisdiction and those that will be

heard by “courts of law,” which may be – but need not be – this Court.

The third and final sentence authorizes the general assembly to “designate by

general law the court or judge by whom the several classes of election contests shall be

tried[.]” This last phrase contains no restrictions and, therefore, must be read to

9 encompass all classes of election contests, including election contests involving proposed

constitutional amendments. If the phrase “the several classes of election contests” meant

only election contests involving public officers in the state, the third sentence would be

largely duplicative of the first two sentences that specifically address election contests

involving state officers. The drafters of this section simply could have added legislative

authority to designate the appropriate “court of law” onto the end of the second sentence

or started the third sentence by referencing “those” or “such” election contests, referring

to the second sentence. Instead, by using the all-inclusive phrase “the several classes of

election contests,” the drafters authorized the legislature to designate the appropriate

court for every type of election contest other than those already committed to this Court

in the first sentence. 7

The use of the all-inclusive phrase “the several classes of election contests” is not

new. It also appeared in article VIII, section 9, of the Missouri Constitution of 1875,

which is the predecessor to the current provision in article VII, section 5. The 1875

7 Indeed, as noted in section I.A of this opinion, any failure to give the phrase “the several classes of election contests” such an all-inclusive meaning would produce an absurd – not to mention grossly unjust – result in this case and all such cases in the future. If this phrase does not include contests involving proposed constitutional amendments, then it stands to reason the general assembly lacks authority to designate any court to hear them. Article VII, section 5 is the only provision authorizing the general assembly to designate courts to hear election contests and, if contests involving proposed constitutional amendments and other ballot propositions are not included in the third sentence of that section, they are not included anywhere. Lucas (and all future contestants) could not bring such election contests in this Court – or any other – and the general assembly would be powerless to designate some other court to hear and determine such claims in the future. The construction explained herein and adopted in Dotson and Shoemyer avoids this absurd result.

10 provision stated the “General Assembly shall, by general law, designate the court or

judge by whom the several classes of election contests shall be tried[.]” The phrase

“the several classes of election contests” meant then – just as it means today – every type

of election contest. The meaning of the phrase has not changed. Instead, the only change

has been in the number and types of election contests to which it refers.

When the 1875 constitution was adopted, there were no election contests involving

proposed constitutional amendments or other statewide ballot propositions because such

elections did not appear on Missouri’s electoral landscape until 1908. In 1917, plainly

perceiving the all-inclusive language in article VIII, section 9 of the Missouri

Constitution of 1875 gave it the authority to do so, the general assembly designated this

Court as the court with original jurisdiction to hear and determine election contests

involving proposed constitutional amendments. 1917 Laws of Mo. 274. And, having

already reached that conclusion, it comes as no surprise that, when the current article VII,

section 5 was being drafted as part of the new constitution in 1945, the drafters saw no

reason to change the phrase “several classes of election contests” to include election

contests involving constitutional amendments. No change was needed because that

all-inclusive phrase already included such election contests. Again, this is not because

the meaning of the phrase had changed, but because that phrase was always meant – and

still means – to include every type of election contest other than those expressly

committed to this Court’s jurisdiction in the first sentence of article VII, section 5. 8

8 For a similar example, one need look no further than article I, section 8 of the United States Constitution. There, Congress is authorized to regulate commerce “among the 11 For more than a century, no one has questioned that article VII, section 5 of the

Missouri Constitution and its predecessor authorize the general assembly to designate

which courts should hear every type of election contest not expressly committed to this

Court in the constitution itself. This Court in Dotson and Shoemyer expressly held that

section 115.555, designating this Court to hear election contests involving proposed

constitutional amendments, is a valid exercise of the general assembly’s constitutional

authority to do so.

Though not strictly binding, this Court’s decision in State ex rel. Rainwater v.

Ross, 149 S.W. 451 (Mo. banc 1912), makes it clear the Court has never understood the

phrase “several classes of election contests” to mean only election contests arising out of

the election of public officers. There, the general assembly enacted a “local option” law

and, in that statute, set forth the appropriate court to hear contests from such elections.

Id. at 452. This Court held the scheme enacted by the general assembly was proper and

the sole means for contesting these elections. Id. at 453. If article VII, section 5 (and the

several states[.]” It would be absurd to contend Congress cannot regulate commerce between Kansas and Missouri today because the meaning of the phrase “the several states” is forever restricted to the original 13 states that made up “the several states” when the Constitution was ratified. Instead, when this phrase is applied today, it includes Missouri and Kansas, not because the meaning of the phrase has changed since ratification but because the phrase “the several states” – like the phrase “the several classes of election contests” – always meant to refer to each and every member of an indefinite class whose membership may increase or decrease over time. See Several, Webster’s Third New International Dictionary (2002) (defining “several” to mean “being a separate member of a group, class, or series[;] individually different within a type[;] … more than one[;] … consisting of an indefinite number more than two and fewer than many usu. of the same class or group”).

12 substantially identical provision in article VIII, section 9 of the 1875 Constitution in

effect for Rainwater) was limited to contests involving the election of state officers, the

general assembly would not have had authority to designate the appropriate court to hear

“local option” election contests because they did not involve the election of public

officers. 9 Instead, this Court in Rainwater refused to adopt such a restrictive construction

of the phrase “the several classes of election contests,” just as it did in Dotson and

Shoemyer, and this Court reaffirms those holdings today.

II. The State Is Not Entitled to Re-Argue Its Motion to Dismiss

Lucas filed his petition on January 6, 2023, within the time period prescribed by

section 115.557. On January 24, rather than filing an answer, the state filed a motion to

dismiss on the following grounds: that (1) Lucas’ contest is time-barred because his

initial petition was not verified and his verified petition was filed after the time for filing

under section 115.557 had expired; (2) the City lacked standing as a voter and it was the

City, rather than Lucas, who was “the real party in interest” in this suit; and (3) sections

9 In fact, only one member of this Court argued the relevant provision of the 1875 Constitution “only speaks of contests for office, and not of contests of elections upon public questions.” See Rainwater, 149 S.W. at 454 (Graves, J., dissenting). But Judge Graves’ argument failed to persuade a majority of this Court then, it did not persuade any member of this Court in Dotson or Shoemyer, and it does not carry the day now. In fact, Judge Graves went on to write the Court’s opinion in Gantt, which steers well clear of construing the phrase “the several classes of election contests” to be limited to only elections of public officers. See Gantt, 149 S.W. at 645 (holding “there is in this section the general grant of power to this and other courts of law to try such cases, and, if in the mind of the General Assembly it was thought best to assign any class of election contest cases to this court, the power to hear and determine would have constitutional sanction” (emphasis added)).

13 115.593 and 115.595, which provide the remedies if an election contest succeeds, are

unconstitutional because they result in a method for amending the constitution that is not

sanctioned in article XII. This Court ordered Lucas to file suggestions in response to the

state’s motion, and then permitted the state to file suggestions in reply. On February 9,

the matter having been fully briefed, this Court issued an order overruling the state’s

motion.

When a party before this Court makes a substantive motion prior to the argument

and submission of the case, this Court may grant the relief sought, deny that relief, or

order the motion taken with the case. In the latter instance, the parties are free to brief

and argue the motion along with the merits of the matter before the Court. But, when the

Court has sustained or overruled the motion prior to briefing and argument, that resolves

the matters raised unless and until the Court gives notice it will reconsider the prior

decision, either sua sponte or on a party’s motion showing the Court misapprehended the

law or the facts. Cf. State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc

1969) (noting the circuit court retains discretion to correct, modify or set aside orders

until a final judgment is entered, provided “such action should be taken only after proper

notice to the parties”); Rule 75.01 (providing a circuit court retains control over its

judgments for 30 days “and may, after giving the parties an opportunity to be heard and

for good cause,” vacate, correct, or amend its judgment).

The obvious rationale for such a rule is to prevent wasting the parties’ and the

Court’s resources re-arguing matters the Court has already decided. In addition, it

prevents potential unfair prejudice to the party who, having prevailed with respect to the

14 motion, relies on the Court’s decision and does not respond continually to the other

party’s re-argument. Finally, it leaves the door open for the Court to revisit pre-argument

rulings when reconsideration is warranted by giving the parties notice that the matter is

again under review.

Here, the Court overruled the state’s motion, the state did not seek reconsideration,

and the Court has not given notice the matter is again under review. Accordingly, the

state’s efforts to resurrect the arguments from its motion to dismiss in its briefs and

during argument were improper. Moreover, as the Court ordered on February 9, 2023,

and as explained below, 10 those arguments lack merit.

A. Lucas’ Amended Petition Relates Back to His Original Filing

Lucas timely filed his election contest petition in this Court. That petition was not

verified, as section 115.557 requires it to be. Two days after the state noted this defect in

its motion to dismiss, Lucas filed an amended petition with a proper verification. Even

assuming it took an amended petition to provide the missing verification, 11 this Court

10 The first and second grounds raised in the state’s motion to dismiss are addressed in sections II.A and II.B. The third argument, claiming chapter 115 somehow results in unconstitutional amendments to the constitution, is addressed in section III.A of this opinion below. 11 Though a party may supply a missing verification via amendment, it is not self-evident this is the only way to do so. Prior versions of Rule 29.15 required an inmate to sign a post-conviction motion and verify it contained all grounds known for challenging the conviction. Nevertheless, this Court held a missing signature could be supplied under Rule 55.03(a) – without amendment – whenever the defect was discovered, even on appeal. Glover v. State, 225 S.W.3d 425, 428 n.3 (Mo. banc 2007). This Court reasoned the signature was required by the rule but, as long as the defect was cured promptly once it was discovered, no purpose was served by dismissing the case, particularly because the movant was bound to the representations in Rule 55.03(c) and 15 decided substantially the same issue nearly 40 years ago and held, for purposes of

applying the same statute of limitation in section 115.557, “Rule 55.33(c) governs the

issue of whether appellant’s First Amended Petition relates back to the date of the filing

of the original petition.” Beatty v. Metro. St. Louis Sewer Dist., 700 S.W.2d 831, 836

(Mo. banc 1985). Beatty has never been overruled, it is correctly decided, and the Court

will follow it here.

In Beatty, the Court held the amendment did not relate back under Rule 55.33(c)

because the amendment brought in new contestees who were not in privity with the

previously named contestees and who had no actual knowledge of the contest. Id. at 837

(“Count I of appellant’s First Amended Petition does not relate back to the date of the

filing of the original petition. Count I is, therefore, barred by the statute of limitations for

election contests. § 115.577.”). Lucas’ amendment added no new parties and no new

claims. Nothing in Rule 55.33(c), or elsewhere in Rule 55.33, prohibits such an

amendment from relating back for purposes of the application of a statute of limitations. 12

subject to the sanctions in Rule 55.03(d). Id. at 428 The same is true here. There is no indication in the constitution or chapter 115 that a failure to include a verification on an otherwise timely petition deprives this Court of jurisdiction when the defect was promptly cured when noted by the other party and there is no prejudice to that party in the interim. 12 The state argues at length the election contest statutes are a “code unto themselves,” and none of this Court’s rules of civil procedure apply unless they are expressly referenced in chapter 115. The state’s allegiance to this argument, however, curiously waxes and wanes to suit its purposes. Indeed, the first six words of the state’s motion are: “Pursuant to Supreme Court Rule 55.27 ….” Chapter 115 nowhere references motions to dismiss, let alone Rule 55.27 and, under the state’s logic, the rule cannot be used. The same can be said about the state’s invoking Rules 55.03 and 84.06 in the certificate of compliance appended to its brief, not to mention the state electronically 16 Whether the amendment is viewed merely as curing a defect under Rule 55.03(a), or an

amendment under Rule 55.33, Lucas’ later verification does not render his election

contest petition untimely. Cf. Drury Displays, Inc. v. Bd. of Adjustment of City of St.

Louis, 760 S.W.2d 112, 114 (Mo. banc 1988) (“By framing the question in terms of

whether verification is ‘jurisdictional,’ [respondents] have misconstrued or overlooked

the essential issue to be determined, which is, whether the filing of an unverified petition

is sufficient to permit a relation back upon filing a properly verified petition or

amendment to the original. We hold that it is.”); Standard of Beaverdale, Inc. v.

Hemphill, 746 S.W.2d 662, 664 (Mo. App. 1988) (“The timing of the verification is

unimportant as long as the petition is verified prior to the entry of the final judgment. …

filed its briefs and all other papers pursuant to Rule 103. None of these rules is mentioned in chapter 115. In Foster v. Evert, 751 S.W.2d 42,44 (Mo. banc 1988), this Court noted chapter 115 provides certain procedures and, when it does, conflicting procedures found in the ordinary rules of civil procedure do not apply. This Court has said that election contest statutes are a code unto themselves. The procedures there established are exclusive and must be strictly followed as substantive law. From this conclusion it also follows that technical requirements which relate to the service of summons in ordinary civil actions do not apply when election contest statutes provide a contrary procedure. Id. (emphasis added) (internal citations and quotations omitted). As this quote shows, however, Foster does not hold ordinary rules of civil procedure cannot be used regarding matters about which chapter 115 is silent. In fact, immediately before the quote from Foster set out above, this Court cited to Beatty with approval even though Beatty held Rule 55.33 applies in election contests. Id. Plainly, Foster – and the Court in this present case – agree with the conclusion in Moore v. Morehead, 666 S.W.2d 460, 461 (Mo. App. 1984), stating: “To the extent that the statutes governing election contests are silent as to the procedural rules to apply in the conduct of such contests, the relevant procedural statutes and rules that apply in all civil actions also apply in governing procedure in election contests.”

17 The verification requirement is not so strict as to make the initial, unverified petition

unsalvageable, and the verification relates back to the filing of the original petition.”).

B. Lucas Has Standing to Bring This Election Contest

The state also argues Lucas does not have standing to challenge the election

approving Amendment No. 4 because he is the City’s mayor. This argument is rejected

because section 115.553 controls who may bring such challenges. It provides:

The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. The petitioning voter or voters shall be considered the contestant and the officer or election authority responsible for issuing the statement setting forth the result of the election shall be considered the contestee. In any such contest, the proponents and opponents of the ballot question shall have the right to engage counsel to represent and act for them in all matters involved in and pertaining to the contest.

§ 115.553.2 (emphasis added).

Lucas pleaded and proved he is a registered Missouri voter. The state does not

contest this fact. That ends the analysis under section 115.553, which entitles Lucas to

bring this action. 13

Nothing in section 115.553 excludes elected officials from bringing an election

contest in their individual capacity as voters. Cf. State ex rel. Fitz-James v. Bailey, 670

13 The state argues the City – not Lucas – is the real party in interest because the City is directing the litigation and paying for Lucas’ representation using both the city counselor’s office and private counsel. Even if these facts are true, the state fails to cite any authority for its contention that they deprive Lucas of his statutory right to bring the action as a voter. If there are concerns about the City paying the costs of an action brought in Lucas’ individual capacity, a matter on which the Court expresses no opinion, such concerns do not alter the fact that Lucas pleaded and proved he is a registered Missouri voter and, as such, is entitled to bring this suit under section 115.553.2.

18 S.W.3d 1, 9 n.6 (Mo. banc 2023) (“[T]he Attorney General cannot bring such a [chapter

116 ballot title] challenge in his official capacity, but nothing prevents him from doing so

in his individual capacity.”). It is sufficiently clear Lucas brought this action in his

individual capacity. See Amended Petition at ¶ 3 (“Plaintiff Quinton Lucas is a registered

voter of the state of Missouri in the City. He has standing to bring this suit.”). The

amended petition draws a clear distinction between Lucas as contestant, on the one hand,

and the City on the other. Such a carefully drawn line would be unnecessary if the action

was brought in Lucas’ official capacity. See Gas Serv. Co. v. Morris, 353 S.W.2d 645,

648 (Mo. 1962) (“[I]n so far as the petition attempts to state an action against the named

defendants in their respective official capacities, the action is one against the State of

Missouri.”). Because the Court cannot ignore the pleadings and the evidence, the state’s

argument must fail. Compare City of Crestwood v. Affton Fire Prot. Dist., 620 S.W.3d

618, 629 n.8 (Mo. banc 2021) (holding the city lacked standing to bring a challenge under

the Hancock Amendment, which permits challenges only by taxpayers), with State ex rel.

City of Desloge v. St. Francois Cnty., 245 S.W.3d 855, 861 (Mo. App. 2007) (holding

county officials could bring a challenge under the Hancock Amendment because the

officials alleged they were taxpayers).

III. Inaccurate and Misleading Ballot Title Language Can Be the Basis for an Election Contest

Chapter 115 allows a registered voter to contest “[t]he result of any election on

any question” after an election has been held. § 115.553.2 (emphasis added). And, as

noted above, chapter 115 provides “all contests to the results of elections on

19 constitutional amendments … shall be heard and determined by the supreme court.”

§ 115.555. Finally, “[i]f the court … determines there were irregularities of sufficient

magnitude to cast doubt on the validity of the initial election, it may order a new election

… on the contested question.” § 115.593.

The state contends defects in a ballot title (either in the summary description of a

proposed constitutional amendment or in the fiscal note summary for that proposal)

cannot form the basis for an election contest under section 115.553.2 and – no matter

how inaccurate or misleading it may be – the ballot language cannot constitute an

“irregularity” sufficient to justify a new election under section 115.593. Instead, the state

contends the sole and exclusive means for challenging the language of a ballot title is a

pre-election action under section 116.190, which provides a citizen may challenge the

ballot title or the fiscal note for a proposed constitutional amendment by bringing an

action within 10 days of the ballot title being certified.

In support of this contention, the state raises three arguments. First, the state

argues – if this Court were to set aside the election regarding Amendment No. 4 and

order a new election – such action would in effect be an illegal amendment to the

constitution because Amendment No. 4 went into effect December 8, 2022, and cannot be

removed thereafter except as provided in article XII. Second, the state contends – under

section 116.020 – the provisions of chapter 116 concerning pre-election ballot title

challenges must take precedence over the general provisions of chapter 115, including the

provisions regarding election contests. Third, the state argues election contests under

20 section 115.555 may challenge only misconduct occurring on election day itself, i.e., in

the casting and counting of ballots, not the language of the ballots themselves.

All of the state’s arguments, and more, were addressed and rejected in Dotson, 464

S.W.3d at 193-95, and Shoemyer, 464 S.W.3d at 173-74, both of which held inaccurate or

misleading language in a ballot title could form the basis for a post-election contest under

section 115.555 so long as the issue had not previously been litigated and determined.

Dotson, 464 S.W.3d at 195; Shoemyer, 464 S.W.3d at 173. 14 The state fails to explain

why these holdings should not apply here to permit Lucas’ claims.

A. Election Contests Are Not Unconstitutional Amendments to the Constitution

The state’s first argument (i.e., that an election contest based on the language in

the ballot title cannot proceed because the constitutional amendment became effective 30

days after the election) was specifically rejected in Shoemyer, 464 S.W.3d at 173-74.

The state’s effort to resurrect this argument now by couching such an election contest as

an illegal amendment to the constitution fares no better. The state’s argument simply

proves too much. All election contests on whatever basis can be brought up to 30 days

after the secretary of state announces the election’s results. § 115.557. That

announcement necessarily occurs weeks after the election itself. § 115.511.3. As such,

14 Though the question was not resolved until Dotson and Shoemyer, this Court strongly foreshadowed this result in Dotson’s ill-fated pre-election challenge. See Dotson v. Kander, 435 S.W.3d 643, 645 (Mo. banc 2014) (dismissing a pre-election challenge to ballot title language as moot, but noting “judicial review of a claim that a given ballot title was unfair or insufficient … is available in the context of an election contest should the proposal be adopted”).

21 few (if any) election contests could be completed before the 30th day after the election

approving the proposed amendment, when article XII, section 2(b) provides the

amendment becomes effective. If the state’s illegal amendment argument was correct, it

would bar practically all election contests no matter what types of irregularities were

alleged. Section 115.595 expressly avoids such an absurd result by explaining how to

proceed when an election concerning a proposed constitutional amendment is challenged.

See § 115.595.2 (stating a proposed amendment is deemed approved or disapproved as

shown in the returns of the election until the contest is decided, at which time it is

deemed approved or disapproved in accordance with the decision). As it did in

Shoemyer, the Court again rejects the argument that article XII implicitly prevents the

very election contests article VII and chapter 115 explicitly authorize.

B. Election Contests Based on the Ballot Title Are Not Barred Simply Because a Pre-Election Challenge Is Possible

The state’s second argument (i.e., that a pre-election action under section 116.190

is the exclusive means of challenging the language of a ballot title because, under section

116.020, this section takes precedence over the provisions of chapter 115) was also

rejected by this Court. Dotson, 464 S.W.3d at 194 (holding, even though “chapter 116

provides a pre-election challenge to a ballot title, there is no statutory indication that it is

the only vehicle for such a challenge”). In fact, section 116.190 provides only that a

citizen “may” bring a pre-election ballot title challenge, not that all such challenges

“shall” be brought under that section. And section 116.020, on which the state so heavily

relies, provides the “procedures contained in chapter 115 shall apply to elections on

22 statewide ballot measures, except to the extent that the provisions of chapter 116 directly

conflict, in which case chapter 116 shall prevail[.]” (Emphasis added). Nothing in

section 116.190 (or any other provision in chapter 116) “directly conflicts” with the broad

language of section 115.553 stating the “result of any election on any question may be

contested” or the provisions in sections 115.557, et seq., outlining the procedure for such

challenges. Accordingly, section 116.020 does not prohibit a post-election contest under

chapter 115 based on the language of the ballot title, and a pre-election action under

section 116.190 is not the sole and exclusive method for such a challenge. 15 See Dotson,

464 S.W.3d at 194 (holding, because section 116.120 states the election procedures in

chapter 115 apply to elections on statewide ballot measures, “a challenge to the ballot

title of a proposed constitutional amendment may be brought in a post-election action

under chapter 115, so long as the issue has not been previously litigated and

determined”).

15 The state argues amendments to section 116.190.5 after Dotson and Shoemyer are sufficient either to show legislative disapproval of those two decisions or, at a minimum, a sufficient basis for this Court to hold those decisions are no longer binding. The state makes too much soup from a single oyster. The changes are found in the first sentence of section 116.190.5, which states: “Any action brought under this section that is not fully and finally adjudicated within one hundred eighty days of filing, and more than fifty-six days prior to the election in which the measure is to appear, including all appeals, shall be extinguished ….” The state infers from this sentence that post-election contests to ballot language cannot be entertained. As this sentence plainly states, however, the time limits therein apply only to “[a]ny action brought under this section.” Therefore, by their own terms, the amendments to section 116.190.5 say nothing about actions brought under section 115.555, et seq., and have no effect on the validity and binding precedential nature of Dotson and Shoemyer.

23 C. “Irregularities” Are Not Limited to Election Day Conduct

The state’s third argument (i.e., that materially inaccurate and misleading ballot

language cannot constitute an “irregularity” sufficient to raise an election contest under

section 115.593 because election contests apply only to election day conduct) was

thoroughly analyzed and rejected in Dotson. This Court noted “‘[i]rregularity’ is not

defined in chapter 115, but courts have considered the violation of election statutes an

irregularity that may be addressed in an election contest.” Dotson, 464 S.W.3d at 194

(citing Gerrard v. Bd of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App. 1995)).

This argument merely repackages the argument that, if a pre-election remedy

exists, it necessarily forecloses a post-election contest under chapter 115. In Dotson, this

Court held statutory violations that might have been challenged prior to the election may

still be raised in a post-election contest. Id. (citing Marre, 775 S.W.2d 951). Marre,

which permitted an election contest to challenge voter qualifications even though a

pre-election challenge was available, was such a case. Marre, 775 S.W.2d at 953. 16 This

holding also disposes of the argument that election contests are limited to challenging

election-day conduct.

16 Dotson cites two other cases for the same proposition. Dotson, 464 S.W.3d at 195 (citing United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000) (rejecting the argument that pre-election review under chapter 116 is the exclusive way to challenge the constitutional form of an initiative measure); Beatty, 700 S.W.2d at 838 (“The wording of the proposition on a ballot and the propriety of the notice of election provided [in a special sewer district election] are issues cognizable only in an election contest.”)).

24 As with the prior two arguments, the state’s third argument seeking to avoid the

application of Dotson and Shoemyer adds little that was not argued in those cases and

nothing sufficiently compelling enough to justify departing from the principles of stare

decisis discussed at length in section I.A of this opinion. Accordingly, the state’s

arguments are rejected, and this Court holds Lucas’ claim with respect to the language of

the ballot title for Amendment No. 4, which has not previously been litigated and

determined, is cognizable in this election contest under section 115.555, et seq.

IV. Amendment No. 4’s Ballot Title Was Inaccurate and Misleading

Lucas’ election contest raises one claim, i.e., the fiscal note summary at the end of

the Amendment No. 4 ballot title was insufficient and unfair and constitutes an

irregularity sufficient to cast doubt on the fairness of the election and the results it

produced. The Court agrees. This Court is not holding the fiscal note is an unfair or

insufficient assessment of the fiscal impact of Amendment No. 4, or that the fiscal note

summary unfairly or insufficiently reflects the fiscal impact of Amendment No. 4.

Neither of these questions is before the Court. Instead, this Court holds only that the

fiscal note summary printed on every ballot in the 2022 general election was an

inaccurate and misleading summary of the fiscal note itself.

The purpose of a fiscal note is to assess the fiscal impact of a ballot proposition,

including any governmental cost or savings. See § 116.175.1 (“[T]he auditor shall assess

the fiscal impact of the proposed measure[.]”); § 116.175.3 (providing the fiscal note

“shall state the measure’s estimated cost or savings, if any, to state or local governmental

entities”). In fulfilling this duty, the auditor “may consult with the state departments,

25 local government entities, the general assembly and others with knowledge pertinent to

the cost of the proposal.” § 116.175.1. When the fiscal note is finished, the auditor is

then to prepare a brief summary that “adequately and without bias, prejudice, or

favoritism synopsize[s] the fiscal note.” Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo.

banc 2012).

To prepare the fiscal note for Amendment No. 4, the auditor contacted various

state and local governmental entities to gather information regarding its fiscal impact.

The City was one of the governmental entities contacted, and it responded that the

Amendment would have a “negative fiscal impact” on the City. When asked for

specifics, the City responded that SB 678 – which Amendment No. 4 authorizes to

become effective notwithstanding article X’s prohibition of unfunded mandates – would

increase the City’s maximum funding obligation from 20 percent of its general revenue to

25 percent, that the City expected the Board’s demand to reach the 25 percent level every

year, and that the impact of increasing the City’s maximum funding obligation from 20

percent to 25 percent was estimated to be $38,743,646 per year.

Based on the responses received, the auditor prepared a fiscal note describing the

potential fiscal impact of Amendment No. 4. Because the City is the only political

subdivision directly impacted by Amendment No. 4 (and SB 678 which it authorizes), 17

17 None of the other political subdivisions surveyed specified any fiscal impact from Amendment No. 4 and, from among the nearly two dozen state agencies and departments, the only estimated costs came from the secretary of state (costs related to putting Amendment No. 4 before the voters) and the attorney general (unspecified costs related to litigation concerning the enactment of the amendment).

26 nearly all of the substantive portion of the fiscal note is devoted to the fiscal impact on

the City. With respect to that fiscal impact, the fiscal note states in its entirety:

Officials from the City of Kansas City indicated if this amendment is approved by the voters it will have a negative fiscal impact on their city because it will provide authorization to the implementation of the state legislature’s recently passed SB 678 that increases the amount that Kansas City must fund its police department from 20% to 25% of the City’s general revenue. Kansas City expect [sic] the maximum 25% to be reached every year. The increase for Kansas City in terms of an estimated dollar amount by increasing the amount that Kansas City must fund its police department from 20% to 25% of the city’s general revenue is $38,743,646. This is calculated based on the Fiscal Year 23 Submitted Budget: 20% of General Revenue from such budget - $154,974,583 25% of General Revenue from such budget - $193,718,228 Difference - $38,743,646 Under current law, the city is allowed to exercise its legislative prerogative to fund the State Board of Police Commissioners at a level in excess of the statutory amount. If SB 678 is signed or otherwise becomes law, and if the amendment is approved, it could obligate the City of Kansas City, Missouri to appropriate an additional 5% of its general revenue in response to a budget prepared by the State Board of Police Commissioners. A change to the percentage would limit the city’s budgetary flexibility and necessitate a reduction in other services the city provides of up to 5% of its general revenues. Based on the city’s most recent budgeted calculation of general revenue, the resolution could increase the city’s mandatory funding for the police and decrease its funding for other services funded by general revenue, including but not limited to, fire protection services, roadway and infrastructure maintenance, and other municipal services by more than $38.7 million.

The fiscal note for Amendment No. 4 also included a response from the

Department and the Board, which stated in its entirety:

The Kansas City Missouri Police Department is tasked with policing a city with a population of approximately 500,000 and nearly 320 square miles. The Police Department must maintain law enforcement staff that can adequately respond to the needs of the community.

27 In Fiscal Year 2022, the City determined that the Police Department received 24.8% of its general revenue. This was $1.8 million less than appropriated in the Fiscal Year 2020 (pre-COVID), and there has been an increase of $2.35 million in just health insurance since that time. This is just one of many items that increased our budget without additional funding. In addition, in the Fiscal Year 2020, the department was funded at full staffing. Currently, with the department being underfunded, the department will continue to be understaffed if funding is not proportionate to increasing costs. Currently, the department’s general fund is 93.8% personnel costs. If the Police Department funding were to continue at 20%, it would remain less than what the City has been funding, and would not support personnel and the bare minimum in other costs that are necessary to operate the Police Department. The current 20% does not allow the Police Department to police the city properly and is a detriment to the community that we serve.

Notwithstanding the lengthy discussion in the fiscal note concerning the fiscal

impact on the City set forth above, the auditor’s summary of that fiscal note stated, in its

entirety:

State and local government entities estimate no additional costs or savings related to this proposal.

Lucas does not challenge the fiscal note, and with good cause. “This Court has

held section 116.175 vests great discretion in the Auditor, both as to what information to

solicit as well as whether and to what extent to rely on whatever information is received.”

Fitz-James, 670 S.W.3d at 9 n.6 (citing Brown, 370 S.W.3d at 667 (noting the auditor is

not required to conduct independent research regarding the fiscal impact of a proposal or

“double-check[ ] economic theories and assumptions” included in any submission and “is

not required to compel and second-guess reasonable submissions from entities but is able

to rely on the responses submitted”)). The auditor reasonably sought a response from the

28 City (among many others), sought clarification of the City’s response, and solicited

additional information from the Department and the Board.

Nothing in the fiscal note indicates the auditor ever questioned, let alone rejected,

the information the City supplied. Nothing in the fiscal note indicates the auditor

concluded the City’s information was too speculative or was not relevant to the fiscal

impact should Amendment No. 4 be adopted. Instead, the auditor included all of the

information quoted above in the fiscal note for Amendment No. 4 without qualification,

limitation, or rebuttal.

The auditor then turned to drafting a summary of the fiscal note. Again, as with

preparing the fiscal note itself, the auditor has considerable discretion in deciding how

best to summarize a fiscal note given the 50-word limitation (not counting articles) and

the statutory imperative to use “language neither argumentative nor likely to create

prejudice either for or against the proposed measure.” § 116.175.3; 18 see also

Fitz-James, 670 S.W.3d at 9 n.6 (citing Mo. Mun. League v. Carnahan, 303 S.W.3d 573,

583 (Mo. App. 2010) (noting “[a]ll of the details of a fiscal note need not be set out in a

summary consisting of a mere fifty words” to comply with the requirements of section

116.175)). This is why a “fiscal note summary is not judged on whether it is the ‘best’

language, only whether it is fair.” Mo. Mun. League, 303 S.W.3d at 583.

18 Notwithstanding the auditor’s discretion in crafting a fair and accurate summary of the fiscal note, section 116.175.3 provides that estimated cost or savings from the proposal, if any, must be included in the fiscal note summary as well as the fiscal note itself. As a result, any estimates the auditor decides to include in the fiscal note also must be echoed in the summary.

29 To say the auditor has discretion in preparing the summary of the fiscal note,

however, is not to relieve the auditor of the primary statutory obligation that the fiscal

note summary must actually “summarize” the fiscal note. See § 116.175.3 (“The fiscal

note summary shall contain no more than fifty words, excluding articles, which shall

summarize the fiscal note in language neither argumentative nor likely to create

prejudice either for or against the proposed measure.” (emphasis added)). A “summary”

that materially misstates what it is supposed to summarize fails in this principal object.

The fiscal note states, “Officials from the City of Kansas City indicated if this

amendment is approved by the voters it will have a negative fiscal impact on their

city[.]” (Emphasis added). The fiscal note explains, if Amendment No. 4 is approved, “it

will provide authorization to the implementation of the state legislature’s recently passed

SB 678 that increases the amount that Kansas City must fund its police department

from 20% to 25% of the City’s general revenue.” (Emphasis added). The note then

states the “increase for Kansas City in terms of an estimated dollar amount by increasing

the amount that Kansas City must fund its police department from 20% to 25% of the

city’s general revenue is $38,743,646.” (Emphasis added). Nothing elsewhere in the

fiscal note indicates the auditor rejected or even qualified these statements. 19

Notwithstanding the foregoing excerpts from the fiscal note – uncontradicted there

by the auditor or qualified in any respect – the auditor’s summary of the fiscal note tells

19 The Department’s submission is primarily aimed at explaining why it needs more than 20 percent of the City’s general revenue to properly perform its duties, a subject that is not at issue in this case.

30 the voters only that “[s]tate and local governmental entities estimate no additional costs

or savings related to the proposal.” That “summary” materially misstates, and materially

misrepresents, the fiscal note. A voter reading this summary not only would not

understand the portion of the fiscal note describing the fiscal impact on the City, that

voter surely would be surprised to discover that a large portion of the fiscal note was

devoted to that subject. Whatever one might think about the information the City

provided, the auditor chose to include that information (without qualification) in the fiscal

note. Having done so, it simply cannot be argued the fiscal note summary fairly and

accurately summarized that part of the fiscal note. Because the fiscal impact on the City

was the most significant issue addressed in the fiscal note, a summary ignoring that

impact was not only inaccurate, it was misleading as well.

A. The Auditor’s Discretion Cannot Justify an Inaccurate and Misleading Fiscal Note Summary

The state argues, because of the 50-word limit, the auditor has discretion in

deciding which fiscal impacts in the fiscal note should be included in the summary and

which should be excluded. The 50-word limit may require the auditor to exercise

discretion when a fiscal note describes many different types and sizes of fiscal impacts,

but the state fails to explain how this limit played any role in the present case in which

the auditor used only 15 of the 50 words permitted under section 116.175.3.

The state also argues the auditor has discretion to determine whether a response is

reasonable or reliable and does not have to include in the summary any estimate the

auditor determines is unreasonable or unreliable. This is incorrect. This Court has said

31 the auditor can pick and choose which parts of which responses are sufficiently

reasonable and reliable to be included in the fiscal note. Fitz-James, 670 S.W.3d at 9 n.6.

But, once information is included in the fiscal note without rejection or qualification, the

auditor is bound to craft a summary that “adequately and without bias, prejudice, or

favoritism synopsize[s] the fiscal note.” Brown, 370 S.W.3d at 654.

The state’s argument suggests a basic misunderstanding of the relative roles of the

fiscal note and fiscal note summary. Its argument suggests: (1) the fiscal note is merely a

compilation of the responses received by the auditor that the auditor is powerless to

change; but (2) the auditor is free to accept, reject, qualify or change all or any part of the

fiscal note when drafting the fiscal note summary. In other words, the state’s argument

proceeds from an assumption that the fiscal note contains the state and local

governmental entities’ estimates (and, for initiative proposals, the proponent’s and

opponent’s estimates), but the fiscal note summary is reserved for the auditor’s estimate,

which the auditor has discretion to formulate without regard for whether the estimates in

the summary agree with or depart from the estimates in the fiscal note. This assumption

contradicts both common sense and the plain language of the statutes.

Section 116.175.1 plainly states “the auditor shall assess the fiscal impact of the

proposed measure.” The fiscal note is that assessment. The auditor is entitled to solicit

information to prepare the fiscal note, § 116.175.1, and this Court has made it clear the

auditor has the discretion “both as to what information to solicit as well as whether and to

what extent to rely on whatever information is received.” Fitz-James, 670 S.W.3d at 9

n.6. But that discretion is exercised in drafting the fiscal note.

32 The fiscal note summary, on the other hand, is just that, i.e., a summary of the

fiscal note. That is what the general assembly intended, see § 116.175.3 (providing the

fiscal note summary “shall summarize the fiscal note”), and that is the plain meaning of

the word. See Summary, Webster’s Third New International Dictionary (2002) (defining

“summary” to mean “constituting or containing a summing up of points[;] covering the

main points concisely[;] summarizing very briefly”). So, any argument the auditor is free

to draft a fiscal note summary that departs in material respects from the fiscal note itself

is simply incorrect.

This is not to say the auditor is bound by the submissions received. Instead, if the

auditor is not persuaded by a submission, the auditor can omit it from the fiscal note or,

better yet, include both the submission and the auditor’s reasons for rejecting it in the

fiscal note. 20 In such a case, a summary ignoring the rejected submission, nevertheless,

would be a fair and sufficient “summary” of the fiscal note because either the submission

was not included in the fiscal note or it was included together with an explanation as to

why the auditor decided it was not reliable. The state insists the auditor has discretion to

do this sort of reasonableness review, and the Court agrees. The state’s argument goes

20 In preparing a fiscal note, the auditor’s decisions regarding which submissions to rely on and to what extent can still be challenged in a pre-election action under section 116.190.3 because the fiscal note must, in any event, be a fair and sufficient assessment of the proposal’s fiscal impact. On the other hand, a post-election contest of that sort (i.e., when the claim is the ballot title was an “irregularity” even though it contained an accurate summary of the fiscal note because the fiscal note itself was flawed) would present a much more difficult case to make than the present one (i.e., when the claim is the fiscal note summary in the ballot title materially misstated the fiscal note it was supposed to summarize).

33 astray, however, with respect to when and where this discretion is used. It must be used

in drafting the fiscal note because the auditor is obligated to produce a fiscal note that

fairly and sufficiently assesses the fiscal impact of the proposal. It cannot be used later to

decide which material parts of the fiscal note the auditor will ignore or contradict in the

fiscal note summary, because that is neither what a summary is nor what a summary

does.

B. The Fiscal Impact of Amendment No. 4

Finally, the state argues the auditor was entitled to draft a fiscal note summary

ignoring the portion of the fiscal note regarding the City’s estimates because Amendment

No. 4 and SB 678, together, 21 would not impose new costs on the City given that the City

had, in recent years, provided funding to the Department at or near 25 percent of its

21 It could be suggested the City’s assessment of Amendment No. 4’s fiscal impact actually reflects the fiscal impact of SB 678, not Amendment No. 4, because – in the abstract and by itself – Amendment No. 4 affects only the general assembly’s authority and imposes no costs on anyone. The state does not make this argument, and rightly so. It is true that estimating costs or savings relating to a proposed constitutional amendment can be difficult, particularly when the proposal merely expands the general assembly’s authority to enact laws. In crafting a fiscal note for such a measure, the auditor cannot engage in pure speculation as to whether or how the general assembly might (or might not) employ the new authority in the future. But no such speculation is needed here. SB 678 was the raison d’etre for Amendment No. 4. The new exception to the unfunded mandate prohibition in article X, section 21 created by Amendment No. 4 applies only to the City and is carefully tailored to SB 678. Under these unique circumstances, any fiscal note that ignored SB 678 in assessing the fiscal impact of Amendment No. 4 would be materially inaccurate and misleading. The auditor was correct in taking SB 678 into account in drafting the fiscal note. The error was in ignoring SB 678’s impact in drafting the fiscal note summary.

34 general revenue rather than refusing to go above its 20 percent statutory maximum

obligation. The Court disagrees.

The fiscal note includes the City’s estimate that Amendment No. 4 and SB 678

impose new costs, and nothing in the fiscal note explains that this estimate is inaccurate

or unreliable. In fact, the general assembly plainly understood SB 678 imposed new

costs. Otherwise, there would have been no need for Amendment No. 4 to propose a new

exception to the constitutional prohibition against unfunded mandates.

Article X, section 21.1 of the Missouri Constitution (which is a portion of what is

referred to colloquially as the Hancock Amendment) provides:

[A]n increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly … of counties or other political subdivisions, unless a state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.

The sole purpose of Amendment No. 4 was to avoid the foregoing prohibition against

unfunded mandates by adding a new exception stating:

Notwithstanding the foregoing prohibitions, before December 31, 2026, the general assembly may by law increase minimum funding for a police force established by a state board of police commissioners to ensure such police force has additional resources to serve its communities.

If the general assembly did not believe SB 678 imposed new or increased costs on

the City, there would have been no need for a new exception to article X, section 21 as

proposed in Amendment No. 4. As a result, SB 678 either imposed such costs (in which

35 case the mandate could not be enforced 22 unless the new exception proposed in

Amendment No. 4 was approved) or it did not impose such costs (in which case

Amendment No. 4 served no purpose). The fact the general assembly proposed and sent

Amendment No. 4 to the voters shows it understood SB 678 imposed new or additional

costs on the City. The auditor’s decision to omit from the fiscal note summary the one

fiscal impact making Amendment No. 4 necessary in the first place cannot be justified by

insisting Amendment No. 4 was never necessary at all.

Finally, the state argues the impact of Amendment No. 4 was not to the City’s

costs (which it had paid voluntarily in the past) but to its discretion, i.e., the City’s

freedom to provide funding above the old 20 percent cap as it saw fit was replaced with

an obligation to provide requested funding up to the new 25 percent cap. The state insists

such an impact is not a “cost or savings” and, therefore, does not belong in the fiscal note

or the fiscal note summary. 23 Again, this argument ignores the statutory language.

22 “Hancock claims are not attacks on the validity of the challenged provision. Rather, they are an attack on the provision’s enforcement.” City of St. Louis v. State, 682 S.W.3d 387, 397 n.8 (Mo. banc 2024) (citing Breitenfeld v. Sch. Dist. of Clayton, 399 S.W.3d 816, 820 n.3 (Mo. banc 2013) (“Even if an unfunded mandate violating the Hancock Amendment is established, the remedy is not the total invalidation of the statute as unconstitutional but rather the entry of a declaratory judgment that relieves the duty to perform the state-mandated activity or service at issue.”)). 23 In fact, the auditor’s staff justified ignoring the fiscal impact provided by the City on the following ground: “City officials did not indicate additional costs or savings would be added to the City overall; they indicated increased funding for the police department which would result in decreased funding for other services.” First, section 116.175.1 refers to “costs or savings,” not “net costs or savings” or “increased costs or savings overall.” Second, when a new requirement of funding for one service necessarily results in decreases to other services (as surely it must for any governmental entity bound to balance its budget), that is a “fiscal impact” as the phrase is used in section 116.175.1.

36 Section 116.175.1 charges the auditor with responsibility for assessing the proposal’s

“fiscal impact.” Later in that same section, the auditor is told to include in the fiscal note

and in the fiscal note summary “cost or savings,” if any, from the proposal. If “fiscal

impact” was limited to “cost or savings,” as the state suggests, the general assembly

would not have used both phrases in the same section. Instead, this language plainly

indicates “fiscal impact” includes, but is not limited to, “cost or savings.” The present

case is a good illustration for why the broader phrase was included.

At the risk of oversimplifying, state and local governments estimate future

revenues and then decide how that money will be spent. This process accounts for all the

anticipated revenue because even a decision to hold money in reserve for the future is (at

least in governmental usage) a decision about how to spend that money. But, because

neither the state nor any of its political subdivisions is, as a general matter, permitted to

spend more than it brings in, every enactment requiring the government to spend a dollar

on “X” is also a decision not to spend it on “Y” or “Z.” One can characterize that

enactment as imposing a “cost” of one dollar (i.e., the cost of “X”) or as merely limiting

the government’s discretion to spend that dollar on “Y” or “Z.” Both are accurate and, if

the former is part of the “fiscal impact,” then the latter must be as well.

Prior to SB 678, the City was free to choose to fund Board requests for the

Department above 20 percent, and it could choose to do so some years but not others.

Under Amendment No. 4 and SB 678, however, that choice disappears. At the beginning

of each budget cycle, the City will have up to $38 million less to spend on the remainder

of government than it would have without Amendment No. 4 and SB 678. It does not

37 matter whether one characterizes Amendment No. 4 and SB 678 as imposing a “cost” of

$38 million per year or reducing the City’s budgetary control over $38 million each year.

The two are functionally the same and both are part of the “fiscal impact” of Amendment

No. 4 and SB 678.

V. The Inaccurate and Misleading Ballot Title for Amendment No. 4 Was an “Irregularity” of Sufficient Magnitude to Cast Doubt on the Election

As set forth above, the fiscal note summary in this case failed in its principal

object to concisely and accurately advise voters of the fiscal impact of the proposal as set

forth in the fiscal note. Worse, the fiscal note summary actually misled voters by

suggesting Amendment No. 4 would have no fiscal impact when the fiscal note identified

a sizeable one. Had this been a pre-election contest under section 116.190, this would

end the analysis. The fiscal note summary would be declared unfair and insufficient and

the Court would rewrite it.

But more is required when a post-election contest is brought under section

115.557, et seq. Following the process set forth in chapter 115, 24 the contestant must

plead and prove the points on which the contestant contests the election. § 115.557. For

24 To challenge an election in this Court under chapter 115, the contestant must file a verified petition in the office of the clerk of the Supreme Court. § 115.557. Lucas timely filed his petition, but failed to verify it. He promptly filed a verified amended petition on February 10, 2023. After the petition and answer were filed, this Court appointed the Honorable S. Cotton Walker, Judge, 19th Judicial Circuit, to act as a commissioner for the purpose of taking evidence as required by section 115.559. Judge Walker filed a report with this Court, including the evidence received and transcripts offered. The Commissioner, however, is not the factfinder. Because this Court has exclusive original jurisdiction, the Court finds the facts in the first instance.

38 the Court to grant relief in the form of a new election, the contestant has the burden to

show “there were irregularities of sufficient magnitude to cast doubt on the validity of the

initial election[.]” § 115.593. Showing the fiscal note summary was both materially

inaccurate and seriously misleading establishes such an “irregularity,” but Lucas must

still show this irregularity casts doubts on the entire election sufficient to justify setting

aside its results. He has made that showing.

Lucas offered the expert opinion of a public opinion researcher who polled

Missourians who voted in the 2022 general election and tested the impact different fiscal

impact information might have made on their decision to support or reject Amendment

No. 4. After describing the poll, this expert opined that a majority of voters likely would

have rejected the amendment had they been told the measure would have a negative fiscal

impact on the City. The state offered no evidence to rebut this opinion.

Neither contestant in Dotson and Shoemyer offered such evidence, and this Court

emphasized there are no strict requirements regarding the kind of evidence a contestant

must adduce to meet the burden of proof. Dotson, 464 S.W.3d at 195 (holding a

contestant need not present evidence of particular voters who were misled). Each case

must turn on its own facts.

A post-election contest based on a defect in the ballot title begins with a leg up in

terms of showing the defect impacted the election. The ballot title is printed right on the

ballot, and it is the last thing the voter sees before voting “yes” or “no.” Chapter 116

controls the last thing the voters see and the most recent information the voters receive

before casting their vote on proposed statutes and constitutional amendments. There

39 could have been many statements about ballot propositions the general assembly would

have wanted to put before the voters immediately before they vote. But, with all those

options to choose from, the general assembly chose two: (a) a short statement of what

the proposal will do, and (b) a summary of the fiscal impact the proposal will have if

adopted. The general assembly made this choice, presumably, because it believed these

were the issues the voters would most want to see addressed – in writing – immediately

before voting: (a) “What does this proposal do?” and (b) “If this proposal passes, what

fiscal impact will it have?” The answers need not be perfect, but they cannot be wrong in

any material respect, and they certainly cannot mislead the voters about either subject.

For the state to decide what to put on the ballot and, as a result of that decision, to make

the voter read information that is both materially inaccurate and seriously misleading is

an “irregularity” of the highest conceivable magnitude.

So, not every ballot title that is insufficient or unfair for purposes of a pre-election

challenge under section 116.190 will be an “irregularity” of such magnitude to justify a

new election under section 115.593. But the ballot title in this case has a fiscal note

summary that not only materially misstates the fiscal note, it is also seriously misleading

as to the fiscal impact of the proposal identified in the fiscal note. 25 Given these defects,

25 This holding is supported by the opinion poll evidence and expert opinions offered by Lucas. Some of the state’s criticisms concerning the limitations of this evidence have merit, and the state accurately emphasizes what this evidence does – and does not – say with precision and certainty. But, at a minimum, this evidence proves that words matter, and that a promise of free governmental services will poll better than services carrying a cost to be paid. As noted above, the Court might have inferred the material defects in the fiscal note summary cast doubt over the entire election simply from the size and nature of those defects and the fact they were the last information the voters saw before voting. The 40 and starting from the premise that the general assembly has determined this fiscal impact

information is so important that it must be the last thing the voters see before voting, the

Court holds this fiscal note summary was an “irregularity” of sufficient magnitude to cast

doubt on the validity of the 2022 general election regarding Amendment No. 4. Under

such circumstances, the only remedy the general assembly authorizes is a new election.

§ 115.593. 26

CONCLUSION

For the reasons set forth above, the results of the 2022 general election approving

Amendment No. 4 are set aside. This Court orders a special election for that question be

conducted on August 6, 2024. 27 The secretary of state is ordered to take all actions

polling evidence offered by Lucas strengthens that inference. As a result, the Court need not determine how the case would have been decided without that evidence. 26 Section 115.593 provides: If the court or legislative body trying a contested election determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new election … on the contested question. The order shall set the date of the election and shall be sent by the clerk of the court … to each election authority responsible for conducting the special election. In its order, the court or legislative body shall specify … the ballot title of the question to be voted on at the special election, and the election shall be conducted and the votes counted as in other elections. Notice of the election shall be given in such manner as the court … directs. The … question submitted at the special election shall be deemed approved if a majority of the votes at the special election are cast in favor of the question. (Emphasis added). 27 Section 115.593 provides, if this Court “determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new election … on the contested question.” Nothing in this statute guides when such an election must take place. Article XII, section 2(b) of the Missouri Constitution provides: 41 necessary to effect this remedy, and notice of the special election is to be given as if the

proposal were going before the voters for the first time. 28 The election shall be

“All [constitutional] amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law … at the next general election, or at a special election called by the governor prior thereto[.]” This language applies when the matter is first submitted to the voters, but it is unclear whether this language also limits the application of section 115.593 after a successful election contest. The Court, however, need not address this question in the present case. 28 This Court’s opinion was first handed down on April 30, 2024. The April 30 opinion was not final, however, because the mandate had not issued. Instead, like any opinion (unless otherwise noted), the April 30 opinion was subject to rehearing or modification on motion by any party, or on the Court’s own motion. Unless the Court otherwise specifies, the mandate will not issue before all post-disposition motions pursuant to Rule 84.17(a) have been ruled upon or the time for filing such under Rule 84.17(b) has expired. On May 15, Lucas filed a motion under Rule 84.17(a)(2) asking this Court to modify language in the opinion, including in the new fiscal note summary. This motion extended the time during which the opinion was not final (and, therefore, subject to rehearing or modification) until this Court disposed of that motion. On May 28, while Lucas’ motion remained pending, the governor issued a proclamation purporting to move the special election that this Court had not yet called from November 5 to August 6. On that same day, the secretary sent notices and related documents concerning that August 6 election to the local election authorities. On May 31, Lucas moved for a judgment of contempt against the secretary and injunctive relief ordering the secretary to comply with this Court’s April 30 opinion. At the time of the governor’s and secretary’s actions, however, this Court had not ordered a special election for November 5 (or any other date) because no mandate had issued and the April 30 opinion was not final. Accordingly, Lucas’ May 31 motion is denied as premature. In addition, Lucas’ May 15 motion to modify is denied, but this Court hereby modifies this opinion on its own motion. As a matter of comity and to accommodate the governor’s apparent desire to have the question decided on that date, one of those modifications is to change the date of the special election now called by this Court from November 5 to August 6, 2024. This modification leaves for another day the necessity to decide whether the governor has any authority, including any authority under article XII, section 2(b), of the Missouri Constitution, to move the date of a remedial “special election” ordered by this or any other court pursuant to section 115.593. See note 27, supra. No further motions under Rule 84.17 may be filed in this matter and the Clerk of the Court is instructed to issue the mandate (and distribute this Court’s order as required under section 115.593) forthwith.

42 conducted and the votes counted as in other elections. The special election for

Amendment No. 4 shall be conducted using the following ballot title:

CONSTITUTIONAL AMENDMENT NO. 4[ 29] Proposed by the 101st General Assembly (Second Regular Session) SS2 SJR 38

Shall the Missouri Constitution be amended to authorize laws, passed before December 31st, 2026, that increase minimum funding for a police force established by a state board of police commissioners to ensure such police force has additional resources to serve its communities? This would authorize a law passed in 2022 increasing required funding by the City of Kansas City for police department requests from 20% of general revenue to 25%, an increase of $38,743,646, though the City previously provided that level of funding voluntarily. No other state or local governmental entities estimate costs or savings.

__________________________________ Paul C. Wilson, Judge

Russell, C.J., Powell and Broniec, JJ., concur; Gooch, J., concurs in part and dissents in part in separate opinion filed; Fischer, J., concurs in separate opinion of Gooch, J.; and Ransom, J., dissents in separate opinion filed.

29 The secretary of state is free to re-number Amendment No. 4 so as to avoid any duplication. § 116.210. 43 SUPREME COURT OF MISSOURI en banc

QUINTON LUCAS, ) Opinion issued April 30, 2024 ) Contestant, ) ) v. ) No. SC99931 ) MISSOURI SECRETARY OF STATE ) JOHN R. ASHCROFT AND ) MISSOURI STATE AUDITOR ) SCOTT FITZPATRICK, ) ) Contestees. )

SEPARATE OPINION CONCURRING IN PART AND DISSENTING IN PART

I concur in the principal opinion’s analysis about why this Court has original

jurisdiction in this election contest and is compelled by stare decisis to follow Dotson v.

Kander, 464 S.W.3d 190, 193 n.2 (Mo. banc 2015), and Shoemyer v. Missouri Secretary

of State, 464 S.W.3d 171, 173 n.2 (Mo. banc 2015). While the dissenting opinion’s

analysis is compelling, Dotson and Shoemyer are binding precedent on the issue of this

Court’s jurisdiction in an election contest like the one brought here. I agree with the

principal opinion that this Court’s precedent concluding this Court has original

jurisdiction in an election contest related to a constitutional amendment may not be

rejected under the high standard of “clearly erroneous and manifestly wrong.”

Templemire v. W&M Welding, Inc., 433 S.W.3d 371, 379 (Mo. banc 2014). I respectfully dissent as to the principal opinion’s result. I would deny relief to

Lucas on the merits of his election contest for multiple reasons. I would deny relief to

Lucas because he did not comply with the plain language of section 115.557, 1 which

provides: “Not later than thirty days after the official announcement of the election result

by the secretary of state, any person … shall file a verified petition in the office of the

clerk of the supreme court.” (Emphasis added). There is no dispute Lucas did not file a

verified petition within 30 days of the announcement of the election result, as required by

the plain language of section 115.557. The secretary of state announced the certified

election results on December 9, 2022; Lucas filed an unverified petition on January 6,

2023; and Lucas did not file a verified amended petition until January 26, 2023, more

than 30 days after announcement of the election results. This case involves sophisticated

parties and counsel on all sides. Lucas knew of section 115.557 as he cited it multiple

times, along with other statutory sections, in his original unverified petition. The analysis

should end there. Lucas did not satisfy the unambiguous requirements of section 115.557

as specified by the General Assembly and has no right to relief. 2

1 All statutory citations are to RSMo 2016, and all rule references are to Missouri Court Rules (2022). 2 As to the argument Lucas satisfied the verification requirement when he filed a verified amended petition more than 30 days after announcement of the election result, this argument is unavailing. Time is of the essence in every election contest as evidenced by the deadlines the General Assembly set in chapter 115. See secs. 115.559.1 (service within two days), 115.559.2 (petition must be sent to interested parties “[i]mmediately”), 115.559.3 (answer within 15 days after petition filing instead of within 30 days after service provided for other civil actions by Rule 55.25(a)). This Court has held “[e]lection contest review procedures are exclusive and must be strictly followed as substantive law.” Hockemeier v. Berra, 641 S.W.2d 67, 69 (Mo. banc 1982); see also Foster v. 2 I also would deny Lucas relief because he did not meet his high burden in a post-

election contest of showing the ballot title for Amendment No. 4 was insufficient and

unfair and constituted an irregularity sufficient to cast doubt on the fairness of the

election and the results it produced. As the principal opinion notes, the auditor has great

discretion in deciding how to summarize the fiscal note given the 50-word limitation and

the statutory requirement to use language “neither argumentative nor likely to create

Evert, 751 S.W.2d 42, 44 (Mo. banc 1988) (reciting the quoted language from Hockemeier and noting, “This Court has said that election contest statutes are a code unto themselves”). To the extent Lucas relies on Beatty v. Metropolitan St. Louis Sewer District, 700 S.W.2d 831 (Mo. banc 1985), that reliance is misplaced. In Beatty, this Court opined, without explanation, that Rule 55.33(c) applied to the question of whether an amended petition changing the named contestee related back to the date of filing of the original petition and concluded the amended petition did not relate back. Id. at 838. Beatty did not address whether Rule 55.33(c) applies to the issue here of whether the verification requirement can be satisfied by an amended petition filed outside the 30-day period, and this Court in Foster quoted Beatty for the proposition that “[i]t is only by the invention of a tortuous reading that the election contest statutes can be made to be confusing, indefinite or uncertain.” Foster, 751 S.W.2d at 44 (quoting Beatty, 700 S.W.2d at 837). In the very next paragraph in Foster, this Court concluded: “To the extent that it relies on rules of procedure which normally control civil actions to address election contest issues, respondent’s argument is flawed[.]” Id. (holding cases requiring personal service on the contestee as a basis for jurisdiction in election contests should no longer be followed). As this Court has recognized, election contests are different. While there may be justification in other cases for finding a statutory verification requirement or other verification requirement satisfied by an amended petition, that is not true here, in the context of chapter 115. Further, the contestees properly raised compliance with chapter 115 in their briefing after this Court’s order overruling the motion to dismiss without explanation because that order was interlocutory in nature. The overruling “of a motion to dismiss is an interlocutory order and not a judgment on the merits.” McMahon v. Geldersma, 317 S.W.3d 700, 705 (Mo. App. 2010). “An interlocutory order may be reconsidered, amended, reversed or vacated by the trial court at any time prior to final judgment being entered.” Id. (internal quotation omitted).

3 prejudice either for or against the proposed measure.” Sec. 116.175.3; State ex rel. Fitz-

James v. Bailey, 670 S.W.3d 1, 9 n.6 (Mo. banc 2023).

I would better understand the principal opinion’s position if the record evidence

was that the City was funding at the time of the election and had funded in the past at 20

percent and Amendment No. 4 changed the funding percentage to 25 percent such that

the simple mathematical calculation the City supplied to the auditor would be correct as

to costs or savings related to Amendment No. 4. But the record evidence here, and the

fundamental problem with Lucas’s argument, is that the City funded at or above 25

percent at the time of the election and in the several years before the election, so the

City’s $38,743,646 figure is correct only if the City relies on sheer speculation that the

City in the future would discontinue the 25 percent funding, potentially resulting in costs

of up to $38,743,646 to the City. The principal opinion acknowledges this issue when it

includes in its proposed ballot language the qualifying language “though the City

previously provided that level of funding voluntarily,” even though neither that

qualifying language nor any other qualifying language appears in the fiscal note itself. 3

3 Lucas also acknowledges this issue when he suggests ballot language that the City “estimates that [Amendment No. 4] could increase the City’s costs by up to $38.7 million,” but this proposed language is not consistent with the fiscal note or the principal opinion’s proposed language. Further, the fiscal note summary submitted to voters was not insufficient or unfair based on the City’s alternative suggestion, included in the fiscal note, that Amendment No. 4 may not increase the City’s costs at all because Amendment No. 4 could result in commensurate decreases to other services to offset additional police funding. Even if, as the principal opinion suggests, this potential offset should be viewed as a fiscal impact or cost, the offset alternative is inconsistent with the other cost information the City provided to the auditor. Simply put, based on all of the inconsistent information the City provided to the auditor, Lucas is unable to meet his high burden in his post-election ballot title contest. 4 Further, this proposed language is itself materially misleading because the qualifying

language is confusing; the qualifying language suggests the City was not funding at or

above 25 percent at the time of the election, which it was; and the proposed ballot

language does not track the fiscal note’s language of “could increase the city’s mandatory

funding for the police … by more than $38.7 million.” 4

It is not within this Court’s province to try to resolve deficiencies in the

information given by the City to the auditor. In these circumstances, Lucas has not

established the ballot title for Amendment No. 4 was insufficient and unfair and

constituted an irregularity sufficient to cast doubt on the fairness of the election and the

results it produced. 5 The drastic remedy of a new election is unwarranted.

Ginger K. Gooch, Judge

4 In the information provided to the auditor, the City referred to the cost as an exact figure ($38,743,646) while inconsistently also characterizing Amendment No. 4’s fiscal impact as “more than $38.7 million,” which suggests an unspecified maximum amount in excess of $38.7 million. 5 I also would find Lucas did not show “there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election[,]” sec. 115.593, by his public opinion researcher polling. I will not elaborate on this issue given I would never reach it based on my case disposition outlined in this opinion. 5 SUPREME COURT OF MISSOURI en banc QUINTON LUCAS, ) ) Contestant, ) ) v. ) No. SC99931 ) MISSOURI SECRETARY OF STATE ) JOHN R. ASHCROFT AND ) MISSOURI STATE AUDITOR ) SCOTT FITZPATRICK, ) ) Contestees. )

DISSENTING OPINION

Because I disagree with the determination this Court possesses original jurisdiction

to hear this election contest, I respectfully dissent. The principal opinion attempts to justify

the summary conclusion from Dotson v. Kander, 464 S.W.3d 190, 193 n.2 (Mo. banc

2015), that this Court had original jurisdiction to hear election contests involving

constitutional amendments. At a superficial level, the principal opinion’s jurisdictional

analysis is appealing. But to accept that analysis, one must ignore the plain text of article

VII, section 5, the evolution of the constitutional provision, and caselaw. Pursuant to our

constitution, this Court was never to hear, in the first instance, election contests other than

those for public officers. I part from the principal opinion’s creative reading of article VII, section 5. Given I believe this Court should not entertain the contest, I express no views

about the remainder of the principal opinion.

This Court’s jurisdiction is established by the Missouri Constitution. The primary

grant of this jurisdiction is found in article V, sections 3 and 4, although other provisions

in the constitution grant this Court original jurisdiction in limited circumstances.

Greenbriar Hills Country Club v. Dir. of Revenue, 2 S.W.3d 798, 799 & n.1 (Mo. banc

1999). One of those provisions is found in article VII, the article of the constitution titled

“Public Officers.” It states:

Contested elections for governor, lieutenant governor and other executive state officers shall be had before the supreme court in the manner provided by law, and the court may appoint one or more commissioners to hear the testimony. The trial and determination of contested elections of all other public officers in the state, shall be by courts of law, or by one or more of the judges thereof. The general assembly shall designate by general law the court or judge by whom the several classes of election contests shall be tried and regulate the manner of trial and all matters incident thereto; but no law assigning jurisdiction or regulating its exercise shall apply to the contest of any election held before the law takes effect.

Mo. Const. art. VII, sec. 5 (emphasis added). 1

From the emphasized phrase above, the principal opinion concludes this Court has

jurisdiction to hear a contested election involving a constitutional amendment. In Dotson,

this Court held, for the first time, that the constitutional provision cited above permitted

1 The principal opinion apparently emphasizes the importance of the label ascribed to this section, which includes the phrase “other election contests.” That label, however, is not contained in the actual text of the constitution. It exists merely as a convenience to navigating the constitution and has no legal import.

2 the legislature to cause contests to the results of elections for constitutional amendments to

be heard originally before this Court. 464 S.W.3d at 193 n.2. This determination was

repeated in Shoemyer v. Missouri Secretary of State, 464 S.W.3d 171, 173 n.2 (Mo. banc

2015), a case handed down the same day as Dotson. As alluded to in the principal opinion,

neither Dotson nor Shoemyer engaged in a meaningful analysis to support the conclusion

that article VII, section 5 permits the legislature to enact section 115.555, 2 which purports

to require this Court to hear “all contests to the results of elections on constitutional

amendments.”

The analytical gap in Dotson remains unbridged by the new analysis of the principal

opinion. The principal opinion lacks a plausible explanation for why a constitutional article

addressing public officers would encompass the separate subject matter of election contests

beyond public officers. Article VII, titled “Public Officers,” contains 14 brief provisions,

all of which—logically—deal with public officers and no other subject matter. When the

framers of the 1945 constitution revised the provision at issue, they placed it in article VII,

addressing public officers, where it naturally belongs. The critical sentence in the provision

is not found in article VIII, which pertains to suffrage and elections, nor is it found in article

XII, dealing with amending the constitution.

The language of the constitutional provision begs the question of what is meant by

the phrase “the several classes of election contests.” “Words used in constitutional

provisions must be viewed in context.” Collins & Assocs. Dietary Consultants, Inc. v. Lab.

2 All statutory references are to RSMo 2016, unless otherwise specified.

3 & Indus. Rels. Comm’n, 724 S.W.2d 243, 245 (Mo. banc 1987), superseded on other

grounds by section 476.410, RSMo 1994. To understand the import of the phrase “the

several classes of election contests,” it must be considered in the context of the overall

provision, which pertains to public officers. The first sentence of the section clearly gives

this Court authority to hear contested elections for executive state officers and explains

how that is to occur, i.e., “in the manner provided by law.” The next sentence addresses

contests for “all other public officers in the state” and specifies where this should occur in

general, i.e., “by courts of law, or by one or more of the judges thereof.” In specifying

those election contests should occur in courts, the directive does not specify how those

contests should be conducted, unlike the first sentence, which established the contests

would be regulated “in the manner provided by law.” How election contests should be

conducted for non-executive public officers in the state is set forth in the third sentence:

the legislature is able to specify the court and the manner of the contest. The phrase “the

several classes of election contests” refers to the different possible classes “of all other

public officers in the state.” The framers recognized the legislature would be able to

address contests for those non-executive state officers by dealing with similar public

officers together. “[T]he several classes of election contests” refers to this legislative

grouping—no more, no less. Article VII, section 5 simply does not address election

contests beyond those for public officers.

This interpretation is supported by the text of the constitutional provision as it

existed in the Missouri Constitution of 1875 and caselaw interpreting that provision. The

prior version of the constitutional provision stated:

4 The trial and determination of contested elections of all public officers, whether State, judicial, municipal or local, except Governor and Lieutenant Governor, shall be by the courts of law, or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all manners incident thereto; but no such law, assigning jurisdiction or regulating its exercise, shall apply to any contest arising out of any election held before said law shall take effect.

Mo. Const. art. VIII, sec. 9 (1875). 3 By its plain language, “the several classes of election

contests” inherently referred to the different classes of public officers: state, judicial,

municipal, or local. This constitutional provision served “to insure [sic] the trial of

contested elections of all public offices, with the exception of Governor and Lieutenant

3 The debates of the Missouri Constitutional Convention of 1875 reveal the provision was borrowed from the recently enacted Pennsylvania Constitution. See 4 Debates of the Missouri Constitution of 1875 at 434 (The State Hist. Soc’y of Mo. 1938). That constitution provided: The trial and determination of contested elections of electors of President and Vice-President, members of the General Assembly, and of all public officers, whether State, judicial, municipal or local, shall be by the courts of law, or by one or more of the law judges thereof; the General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto; but no such law assigning jurisdiction, or regulating its exercise, shall apply to any contest arising out of an election held before its passage. Pa. Const. art. VIII, sec. 17 (1874). Obviously, this provision was concerned only with elections of individuals. In Wilson v. Blaine, the Supreme Court of Pennsylvania noted: By various provisions in the Constitution of this state the elections of public officials are provided for, and, by article 8, § 17, the different classes thereof are stated, and as to them it is directed that—— ‘The General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto.’ 105 A. 555, 556 (Pa. 1918) (emphasis added).

5 Governor, in the courts of law.” State ex rel. Wells v. Hough, 91 S.W. 905, 912 (Mo. banc

1906) (emphasis added); see also Bradbury v. Wightman, 134 S.W. 511, 511 (Mo. banc

1911) (noting the constitutional provision “undertakes to do two things: [f]irst, it takes

from the Senate the power to hear and determine contested elections of all public officers,

whether state, judicial, municipal, or local, except Governor and Lieutenant Governor; and,

second, to confer that power and jurisdiction upon courts of law, or in one or more of the

judges thereof, as the Legislature may designate by general law” (emphasis added)). 4

This dissenting opinion is not the first to read the provision in this manner. Judge

Graves, in two dissenting opinions, maintained the “classes” in the constitutional provision

referred to the different classes of public officers earlier listed in the provision. State ex

rel. Rainwater v. Ross, 149 S.W. 451, 454 (Mo. banc 1912) (Graves, J., dissenting) (finding

“section 9 of article 8 of the Constitution only speaks of contests for office, and not of

contests of elections upon public questions”); Bradbury, 134 S.W. at 512 (Graves, J.,

dissenting) (“This constitutional provision, so far as contests before the courts are

concerned, divides the officers into three general classes, i.e.: (1) ‘State’; (2) ‘judicial’; and

4 The 1875 constitution contemplated a variety of elections beyond elections for office. See, e.g., Mo. Const. art. IX, sec. 2 (1875) (to remove county seats); id. art. IX, sec. 8 (for township organization); id. art. IX, sec. 16 (to approve charters); id. art. X, sec. 12 (to approve municipal indebtedness); id. art. XV, sec. 2 (to approve constitutional amendments proposed by the general assembly). The results of all such elections could have been challenged if authorized by the legislature. See, e.g., State ex rel. Ellis v. Elkin, 30 S.W. 333, 337 (Mo. 1895) (finding Missouri had no express provisions of law for contests of elections for the removal of county seats). Subject to constitutional limitations, those challenges could have occurred in whatever manner the legislature deemed appropriate. But electing officers was viewed differently. The purpose of adding section 9 to the constitution was to remove politics from the selection of public officers. See Wells, 91 S.W. at 912.

6 (3) ‘municipal or local.’”). The principal opinion in each case did not attempt to counter

this reasoning, likely because such an obvious proposition did not need to be addressed.

Rather, in Bradbury, the principal opinion found the legislature had not enacted a statute

regarding the specific office at issue. 134 S.W. at 512. In Rainwater, the principal opinion

permitted a contest to an election under the local option law to borrow procedure from the

existing law dealing with the election of county officers in the state. 149 S.W. at 452-53.

State ex rel. McDonald v. Lollis, 33 S.W.2d 98 (Mo. banc 1930), provides further

support that the constitutional provision has never authorized courts to hear election

contests beyond those regarding public officers. In McDonald, this Court was presented

with the issue of whether a statute permitting “[c]ircuit courts and the judges thereof in

vacation” to hear and determine primary contests was valid. Id. at 99. In an attempt to

suggest a contest under the statute was proper, the constitutional provision was cited. Id.

at 100. This Court dismissed the argument, noting:

It is true the amendment[5] provides that the judge of a court of law may hear and determine contested elections of all public officers, but this provision furnishes no reason for holding that a judge in vacation may hear and determine a contested nomination for a public office. The express language of the amendment limits the authority of the judge of a court to the hearing and determination of contested elections of public officers, thereby excluding the idea that the framers of this amendment intended to vest such judge with authority to hear and determine contested nominations for a public office. A primary election for the purpose of nominating candidates for public offices is not the election of public officers; therefore, constitutional authority to the judge of a court to hear and determine contested elections of public officers does not give him authority to hear and determine contested nominations for public offices.

5 By amendment in 1924, the relevant provision was moved to article VIII, section 8.

7 Id. (emphasis added). As demonstrated by this passage, the scope of the constitutional

provision is limited to election contests for public officers.

The legislature’s authority to direct where election contests could be heard perhaps

became muddled by caselaw permitting election-contest statutes to borrow procedure from

existing statutes. Missouri’s local option law, enacted in the 1880s, contained a provision

permitting elections under it to “be contested in the same manner as is now provided by

law for the contest of the elections of county officers.” Rainwater, 149 S.W. at 452. This

Court held such procedural adoption was proper. Id. at 453. In the exercise of the power

granted by the constitutional provision, statutes were enacted “prescribing a complete

remedy for the contest of an election to office by a private citizen.” Id. (emphasis added).

From those statutes, it was proper for “the Legislature [to] adopt[] another statute or mode

of procedure by reference.” Id. Notably, in adopting the procedure provided for contests

to the elections of county officers, the contest to the election under the local option law was

being heard in a circuit court. Section 5924, RSMo 1909 (“The several circuit courts shall

have jurisdiction in cases of contested elections for county and municipal offices ….”).

Such adoption of procedure was discussed again in State ex rel. City of Monett v.

Thurman, 187 S.W. 1190 (Mo. banc 1916). In another contest in the local option law

context, a party alleged the statute, which permitted the election to be contested in the same

manner as provided by law for the contest of the election of county officers, conflicted with

the constitutional provision at issue. Id. at 1192; section 7242, RSMo 1909. This Court

disagreed, stating:

8 The General Assembly long ago passed the general law intended by this [constitutional provision], and [the statute] adopts its provisions as to jurisdiction and procedure in local option contests. The section of the Constitution set out does not restrict contests to elections of officers. As to such contests it provides the sole method and excludes other methods, but we find no authority for the conclusion that a constitutional direction with reference to procedure as to a particular and specified matter precludes all legislative action upon another and different matter.

Thurman, 187 S.W. at 1192 (citation omitted). Two key propositions can be taken from

this analysis. First, the constitutional provision is specific to public officers. Second, the

legislature is free to pass laws regarding other election contests. 6 No authority exists,

however, for the legislature to cause those contests to be heard, in the first instance, before

this Court, which has its original jurisdiction clearly limited in the Missouri Constitution.

In spite of this Court’s limited jurisdiction specified in the constitution, the

legislature passed the following law in April 1917:

The result of any election or vote upon a proposed constitutional amendment … may be contested upon the petition of one or more qualified voters of the state directed against the secretary of state. The provisions of law governing contested elections for the officers mentioned in section 5951 Revised Statutes of Missouri for the year 1909 shall govern the contests herein

6 The principal opinion’s analysis is critically flawed in this respect, and its reference to Rainwater wholly misses the point of that case. The general assembly is free to legislate on the topic of a contested election for a proposed constitutional amendment. “[T]he legislative power of Missouri’s General Assembly, under Article III, Section 1 of the Missouri Constitution, is plenary, unless, of course, it is limited by some other provision of the constitution.” Bd. of Educ. of City of St. Louis v. City of St. Louis, 879 S.W.2d 530, 533 (Mo. banc 1994). Unless prohibited by the federal or state constitution, “the legislature has the power to enact any law.” Three Rivers Junior Coll. Dist. of Poplar Bluff v. Statler, 421 S.W.2d 235, 238 (Mo. banc 1967). While article VII, section 5 provides constraints regarding election contests for public officers, it does not impact potential legislation for other election contests. The general assembly lacks authority, however, to cause this Court—outside of its appellate jurisdiction—to hear contests involving proposed constitutional amendments.

9 provided for, the petitioning voter or voters to be considered as the party contestant and the secretary of state as the contestee.

1917 Laws of Mo. 274. The statute referenced in the new law commanded this Court to

hear and determine “contested elections for judge of the supreme court, judge of the

St. Louis and Kansas City courts of appeals, superintendent of public schools, secretary of

state, state auditor, state treasurer, and attorney-general.” Section 5951, RSMo 1909.

Article VIII, section 9 of the 1875 constitution authorized the legislature to cause election

contests for these public officers to be heard in this Court. No constitutional authority,

however, permitted the election contest contemplated by the 1917 law to be heard in this

Court. The same is true of its modern counterpart, section 115.555, as to any contest

beyond the election for the public officers listed.

Unfortunately, Dotson and Shoemyer simultaneously found this Court to have

original jurisdiction to hear election contests for constitutional amendments. Both cases

did so on the basis of article VII, section 5 and Gantt v. Brown, 149 S.W. 644 (Mo. banc

1912). Dotson, 464 S.W.3d at 193 n.2; Shoemyer, 464 S.W.3d at 173 n.2. As discussed,

the constitutional provision does not support this Court’s jurisdiction in the matter. Gantt,

likewise, does not support this Court’s jurisdiction. 7 In Gantt, the Court was confronted

with the question of whether it had jurisdiction to entertain a contest for the office of judge

of this Court. 149 S.W. at 645. Article VIII, section 9 of the 1875 constitution gave the

7 One “important factor in determining whether a precedent should be overruled is the quality of its reasoning.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 917 (2018). Here, very little deference should be owed to a holding premised on a bare reference to an irrelevant constitutional provision and a case that had nothing to do with the proposition for which it was cited.

10 trial and determination of contested elections of judicial officers to the courts of law. Id.

By statute, contested elections at the time for judges of the Court were to be heard by this

Court. Id. The contestees in Gantt, however, nevertheless argued the Court was given

purely appellate jurisdiction by the constitution, except in the case of certain writs. Id. at

646. The Court, in plain adherence to the constitution, disagreed. Id. (noting article VI,

section 2 of the 1875 constitution gave the Court appellate jurisdiction only, “except in

cases otherwise directed by this Constitution”). Because article VIII, section 9 of the 1875

constitution conferred original jurisdiction, the Court had jurisdiction to hear the case. Id.

Nothing in Gantt would suggest the Court should have original jurisdiction in contests

beyond public officers.

Of note, Gantt was written by Judge Graves, who, as discussed above, made clear

his opinion of the meaning of the constitutional provision. Dotson’s reliance on Gantt

makes no sense, and it ignores the relevant viewpoint of the opinion’s author. In Gantt,

the Court recognized the constitutional provision granted it “the right to hear and determine

such election contest cases as we have before us now.” 149 S.W. at 646 (emphasis added).

Before the Court was a contest to an election for a judge of this Court—a public officer.

Id. at 645. The Court was not discussing “election contests” in a broad sense to cover

election contests beyond public officers. 8

8 The principal opinion plainly misconstrues Judge Graves’ holding in Gantt. In a case involving an election contest for a public officer, Judge Graves’ use of the phrase “any class of election contest cases” would still fully adhere to his prior viewpoint on the subject.

11 Although the contestant relied on Dotson and Shoemyer to bring this contest before

this Court, the finding of jurisdiction in those cases was erroneous. This Court’s

jurisdiction is both created and confined by the Missouri Constitution. The legislature is

without authority to enact laws, no matter how beneficial, expanding this Court’s original

jurisdiction beyond that specified in the constitution. 9 This Court should respect the

boundaries of its jurisdiction with great caution.

The doctrine of stare decisis should not bind this Court’s hands in considering its

own jurisdiction, which springs from a single source: the state’s constitution. Following

Dotson’s holding without further inquiry is not warranted. “The doctrine of stare decisis

promotes security in the law by encouraging adherence to previously decided cases.”

Indep.-Nat’l. Educ. Ass’n v. Indep. Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). But

the doctrine “is not absolute”. Id. Dotson’s unsupported reliance on article VII, section 5

to find jurisdiction was error. As explained in this dissenting opinion, that section is

inapplicable.

An incorrect interpretation of the state’s constitution should not be followed simply

to uphold an erroneous opinion. Id. (“Deviations from clear constitutional commands—

although longstanding—do not promote respect for the rule of law.”); see also Med. Shoppe

Int’l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 335 n.5 (Mo. banc 2005) (noting “[j]udicial

9 As an example, this Court, by order, has declined to answer certified questions despite statutory authority to do so. Grantham v. Mo. Dep’t of Corr., No. SC72576, 1990 WL 602159, at *1 (Mo. banc July 13, 1990) (noting the constitutional provisions establishing and limiting this Court’s general jurisdiction “do not expressly or by implication grant the Supreme Court of Missouri original jurisdiction to render opinions on questions of law certified by federal courts”).

12 re-interpretation is particularly apt with respect to constitutional principles”). It was for

this reason that a majority of this Court had no qualms about overruling precedent in

Independence-National Education Association when that precedent contradicted the plain

meaning of a constitutional provision. 223 S.W.3d at 137. The same should be true now.

Because I believe this Court is without jurisdiction to originally hear this contest, I

respectfully dissent.

___________________________________ Robin Ransom, Judge