State Ex Rel. Nixon v. Blunt

135 S.W.3d 416, 2004 Mo. LEXIS 75, 2004 WL 1208929

• Court: Supreme Court of Missouri
• Decided: June 3, 2004
• Docket: SC 86013
• Status: Published

Opinions

PER CURIAM.

The request of the Attorney General for a writ of mandamus against the Secretary of State is denied at this time, without prejudice. The Secretary of State has a duty to take all necessary actions to properly submit Senate Joint Resolution 29 to the voters of Missouri at the August 3, 2004, election.

BACKGROUND

On March 1, 2004, the Missouri Senate passed Senate Joint Resolution 29 (SJR 29), proposing to the voters of Missouri a constitutional amendment to add the following provision to article I of the Constitution of the State of Missouri:

Section 33. That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.

On May 14, 2004, the Missouri House of Representatives took up and passed SJR 29 without amendment. These actions are reflected in the Senate and House journals for those respective dates.

On May 19, 2004, Governor Bob Holden issued a proclamation pursuant to article XII, section 2(b) of the Missouri Constitution calling for a special election on August 3, 2004, directing that SJR 29 be voted upon by the people at that election. On May 19, 2004, Secretary of State Matt Blunt wrote Governor Holden a letter, in response to the proclamation, stating that he had not received SJR 29 from the General Assembly and that he would take appropriate action, in accordance with chapter 116,¹ upon receipt of the joint resolution. Unstated, but clearly implied by the letter, was a refusal by the Secretary of State to take any action until receipt of the joint resolution.

On May 20, 2004, Attorney General Jay Nixon filed suit in the Cole County Circuit Court seeking to compel the Secretary of State to prepare SJR 29 to be placed upon the ballot for the August 3, 2004, election. The circuit court denied relief on May 21, 2004, holding that the Secretary of State’s duties under chapter 116 were not triggered because he had not received the official copy of SJR 29 signed by the Speaker of the House and the President Pro-Tem of the Senate.

On May 21, 2004, the Attorney General sought to bring the matter directly to this Court. The request was denied without prejudice. The Attorney General then sought relief in the Court of Appeals, Western District, which was denied on May 24, 2004.

The Attorney General brought the matter again to this Court on May 24, 2004. The Court entered an order on May 25, 2004, allowing the parties to file any amended or supplemental pleadings on or before May 31, 2004, and scheduling oral argument for June 1, 2004. The order also directed the Secretary of State to “be prepared to take all steps necessary promptly to place Senate Joint Resolution 29 on the August 2004 ballot if this Court so orders.”

On May 28, 2004, the presiding officers of the Missouri Senate and House of Representatives signed SJR 29, and the resolution was delivered to and received by the Secretary of State that afternoon. The Secretary of State promptly delivered a copy of the resolution to the State Auditor for the purpose of preparing a fiscal note and fiscal note summary in accordance with section 116.175. The State Auditor delivered to the Attorney General her note and summary on that same day.

CONTROLLING CONSTITUTIONAL AND STATUTORY AUTHORITY

Article XII, section 2(a) of the Missouri Constitution provides,

Constitutional amendments may be proposed at any time by a majority of the members-elect of each house of the general assembly, the vote to be taken by yeas and nays entered on the journal.

Article XII, section 2(b) of the Missouri Constitution provides in part:

All 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, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto at which he may submit any of the amendments.... If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication for four consecutive weeks shall be made....

Section 2.010 provides:

The original rolls of all laws and joint and concurrent resolutions passed by each general assembly shall, immediately after the passage thereof, be deposited in the office of the secretary of state, and every bill and resolution presented to the governor for his approval, and returned by him to the house in which it originated with his approval thereon, shall, immediately after such return, be deposited by the secretary of the senate, or by the chief clerk of the house, as the case may be, in the office of the secretary of state.

Section 115.125 provides, in part:

1. Not later than 5:00 p.m. on the tenth Tuesday prior to any election, except a special election to decide an election contest, tie vote or an election to elect seven members to serve on a school board of a district pursuant to section 162.241, RSMo, or a delay in notification pursuant to subsection 2 of this section, or pursuant to the provisions of section 115.399, the officer or agency calling the election shall notify the election authorities responsible for conducting the election. The notice shall be in writing, shall specify the name of the officer or agency calling the election and shall include a certified copy of the legal notice to be published pursuant to subsection 2 of section 115.127....

2. Except as provided for in sections 115.247 and 115.359, if there is no additional cost for the printing or reprinting of ballots or if the political subdivision or special district calling for the election agrees to pay any printing or reprinting costs, a political subdivision or special district may, at any time after certification required in subsection 1 of this section, but no later than 5:00 p.m. on the sixth Tuesday before the election, be permitted to make late notification to the election authority pursuant to court order, which, except for good cause shown by the election authority in opposition thereto, shall be freely given upon application by the political subdivision or special district to the circuit court of the area of such subdivision or district. No court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election, except as provided in sections 115.361 and 115.379.

Section 116.160.1 provides, in part:

If the general assembly adopts a joint resolution proposing a constitutional amendment or a bill without a fiscal note summary, which is to be referred to a vote of the people, after receipt of such resolution or bill the secretary of state shall promptly forward the resolution or bill to the state auditor.

Section 116.240 states:

Not later than the tenth Tuesday pri- or to an election at which a statewide ballot measure is to be voted on, the secretary of state shall send each election authority a certified copy of the legal notice to be published. The legal notice shall include the date and time of the election and a sample ballot.

ANALYSIS

There is no dispute that article XII, section 2(b) of the constitution grants to the Governor the power to call for a proposed constitutional amendment to be submitted to the people at a special election prior to the next general election. The focus of the litigation below was that the Secretary of State had not yet received from the legislature the original copy of the resolution.

The Secretary of State was correct that his statutory duties regarding the placement of any proposed constitutional amendment on the ballot are not finally triggered until his “receipt” of the original document. Section 116.160. Although it may be clear from the Senate and House Journals that any particular resolution has passed prior to the time of receipt, neither of those documents can attest to the true and correct text of the resolution. Section 2.010 requires that the Secretary of the Senate or the Chief Clerk of the House deposit in the office of the Secretary of State any joint resolution “immediately after the passage thereof.” This act finally triggers the Secretary of State’s statutory duties to prepare the resolution to be placed upon a ballot. See, Protection Mut. Ins. Co. v. Kansas City, 504 S.W.2d 127, 130 (Mo.1974). Accordingly, the circuit court and the Court of Appeals, Western District, correctly denied the Attorney General’s petition because his request for a writ, as to the Secretary of State, was simply premature.

SJR 29 was delivered to the Secretary of State on May 28, 2004. Section 116.240 requires the Secretary of State to send legal notice to each election authority that includes the time of the election and a sample ballot by the tenth Tuesday prior to the election — in this instance May 25, 2004. This Court’s order of that date required that “a statement that litigation is pending concerning whether to place Senate Joint Resolution 29 on the August 2004 ballot and that the election authorities should be prepared to add such issue to such ballot if this Court so orders” be included in the Secretary of State’s notice. The Secretary of State was also ordered to “be prepared to take all steps necessary promptly to place Senate Joint Resolution 29 on the August ballot if this Court so orders.”

Although the Secretary of State suggests that section 116.240 may prohibit placement of this issue on the August 3, 2004, ballot, this suggestion is not well taken. No statute precludes the Secretary of State from sending an amended notice to each election authority subsequent to the tenth Tuesday before the election. Moreover, numerous statutory provisions contemplate that the ballot can be changed after the Secretary of State’s ten-week notice.² The statutes also clearly note that courts are to freely give authority to make changes in the ballot until six weeks before the election. Sections 115.125.2 and 115.127.6.

No showing has been made that the remaining statutory requirements to place SJR 29 on the August ballot cannot be met. In fact the Secretary of State, the State Auditor, and the Attorney General have all confirmed that they can fulfill their duties in an expedited manner, if necessary.

The Secretary of State cannot exercise the duties of his office in a manner to frustrate the Governor’s constitutional authority to select the election date for the submission of this question to the people. See, State ex rel. Upchurch v. Blunt, 810 S.W.2d 515 (Mo. banc 1991); Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167 (1956). Nor has the Secretary of State expressly indicated that he would do so. If the Governor properly calls a special election on a proposed constitutional amendment under article XII, section 2, the special election is the only election in which the voters can consider that proposed amendment. The Governor’s proclamation, pursuant to his constitutional authority, properly designated the election of August 3, 2004, for the voters to consider SJR 29.

The Secretary of State has a duty to take such actions as are necessary, in an expedited manner, to prepare SJR 29 for submission to the people of Missouri at the August 3, 2004, election in accordance with the Governor’s proclamation. If any further relief is required, Rule 84.22 will be waived, and the action can be brought directly in this Court.

The Attorney General’s request for a writ of mandamus is denied, without prejudice.

WHITE, C.J., WOLFF, STITH, and TEITELMAN, JJ., concur. BENTON, J., concurs in separate opinion filed. PRICE, J., concurs in opinion of BENTON, J. LIMBAUGH, J., concurs in part and dissents in part in separate opinion filed.

1 . All statutory references are to RSMo 2000 or RSMo Supp.2003, whichever is later.

2 . See, e.g., sec. 115.247.2 (permitting circuit courts to order changes to the ballot after ten weeks when errors are discovered thereon); sec.115.333 (permitting courts to order new candidates or parties onto the ballot after the ten-week deadline); sec 115.127.3 (acknowledging that courts may remove candidates or issues after the initial ten-week deadline); sec 116.185 (allowing identical or substantially identical ballot titles to be changed, without regard to the ten-week deadline as long as it is “before the ballot is printed”) sec 115.127.6 (permitting candidate to remove his or her name from the ballot up to six weeks before the election); sec 115.359.1 (permitting candidates to remove their names from the ballot, without regard to the ten-week deadline, after being named as a party candidate for a different office); sec 115.359.2 (permitting candidates to remove their names from the ballot until the sixth week before an election upon court order); sec 115.361 (nominations to reopen if the incumbent or only candidate for nomination dies, withdraws or is disqualified on or before the eighth week prior to a primary election); sec 115.363.1(1) (party committees may nominate until the fourth week before a primary election if all the party’s candidates die after the last permissible day for filing); sec 115.363.3 (party committees may nominate until the fourth week before the general election if the party candidate dies and until the sixth week before the election if the party candidate is disqualified); sec 115.363.4 (party committees may nominate candidates for the general election if an unopposed candidate dies prior to the fourth week before the election or is disqualified prior to the sixth week before the election); sec 115.373 (names of candidates selected by party committees to fill vacancies created by death, disqualification or withdrawal to be filed with the Secretary of state of State or the proper election authority not later than four weeks prior to the election); sec 115.383 (requiring election authorities who are "duly notified” at any time to remove or add names to ballot before printing, or by use of pasters after printing).