MISSOURI COURT OF APPEALS
WESTERN DISTRICT
ANITA MARIE KUEHNER, ET AL., )
) WD77899
Appellants, )
v. ) OPINION FILED:
)
JASON KANDER, ) September 18, 2014
)
Respondent. )
Appeal from the Circuit Court of Cole County, Missouri
Honorable Daniel Richard Green, Judge
Before Special Division: Thomas H. Newton, P.J.,
Mark D. Pfeiffer, and Cynthia L. Martin, JJ.
Summary
Ms. Anita Marie Kuehner et al. (Appellants) appeal the trial court‟s
judgment that Initiative Petition 2014-024 neither infringes upon Article XII,
section 2(b), or Article III, section 50, of the Missouri Constitution, nor
violates section 116.050. 1 We affirm.
1
Statutory references are to RSMo 2000 and the Cumulative Supplement 2013, unless otherwise
stated.
1
Factual and Procedural Background
The following facts were adduced from the joint stipulation of facts and
exhibits. In March 2013, a representative of TeachGreat.org 2 submitted an
initiative petition sample sheet to the Secretary of State‟s Office “relating to a
proposed . . . amendment to [a]rticle IX of the Missouri Constitution.” It was
identified as Initiative Petition 2014-024 (Petition). The Petition supported the
following proposed constitutional amendment, which reads as follows:
Be it resolved by the people of the state of Missouri that the
Constitution be amended:
Article IX is amended by adopting six new sections to be
known as Article IX, Sections 3(d), 3(e), 3(f), 3(g), 3(h), and 3(i),
to read as follows:
Section 3(d). All certificated staff shall be at will employees
unless a contract is entered into between a school district and
certificated staff (1) prior to the effective date of this section; or
(2) pursuant to the provisions of section 3(e), 3(f), and 3(h) of this
article. “Certificated staff,” as used in this article, shall mean
employees of a school district who hold a valid certificate to teach
in the State of Missouri.
Section 3(e). No school district receiving any state funding
or local tax revenue funding shall enter into new contracts having a
term or duration in excess of three years with certificated staff.
Section 3(f). Effective beginning July 1, 2015, and
notwithstanding any provisions of this constitution, any school
district receiving any state funding or local tax revenue shall
develop and implement a standards based performance evaluation
system approved by the Missouri Department of Elementary and
Secondary Education. The majority of such evaluation system shall
be based upon quantifiable student performance data as measured
2
TeachGreat.org, a political action committee, funded and led the effort to gather signatures for
Initiative Petition 2012-024 (Petition).
2
by objective criteria and such evaluation system shall be used in
(1) retaining, promoting, demoting, dismissing, removing,
discharging and setting compensation for certificated staff; (2)
modifying or terminating any contracts with certificated staff; and
(3) placing on leave of absence any certificated staff because of a
decrease in pupil enrollment, school district reorganization or the
financial condition of the school district.
Section 3(g). Nothing in section 3(f) shall prevent a school
district from demoting, removing, discharging, or terminating a
contract with certificated staff for one or more of the following
causes: (1) physical or mental condition unfitting him to instruct or
associate with children; (2) immoral conduct; (3) incompetency,
inefficiency or insubordination in line of duty; (4) willful or
persistent violation of, or failure to obey, state laws or regulations;
(5) excessive or unreasonable absence from performance of duties;
or (6) conviction of a felony or a crime involving moral turpitude.
Section 3(h). In any suit to challenge a school district‟s
decision regarding retention, promotion, demotion, dismissal,
removal, discharge, modification or termination of contracts, or
setting compensation of certificated staff, except for decisions
made for any of the causes listed in Section 3(g) of this Article, the
person bringing such suit must establish that the school district
failed to properly utilize the standards based performance
evaluation system as referenced in Section 3(f) of this Article.
Section 3(i). Certificated staff shall retain the right to
organize and to bargain collectively as provided in article I, section
29 of this Constitution, except with respect to the design and
implementation of the performance based evaluation system
established in this article, and as otherwise referenced in this
article.
(Italics added to section 3(f).) TeachGreat.org later submitted more than
25,000 signature pages 3 to the Secretary of State‟s Office in support of the
Petition.
3
A blank sample signature page in the record included spaces for fifteen signatures.
3
In June 2014, the Appellants (teachers employed by the Francis Howell
School District) filed suit against Secretary of State Jason Kander in the Circuit
Court of Cole County for declaratory judgment and injunctive relief. The
Appellants are covered by a collective bargaining agreement, which includes a
“teacher performance evaluation regulation,” through June 2016. They argued
that the Petition supports a constitutional amendment that: (1) “amends more
than one article of the constitution and contains multiple subjects ”; (2) “does
not contain the full text of the measure”; and (3) “fails to comply with section
116.050.2.”
In July 2014, Secretary Kander filed an answer, arguing that the
Appellants‟ claim should be dismissed because it: (1) “fail[s] to state a claim
upon which relief can be granted”; (2) “presents allegations that are not yet
ripe for adjudication[] or are not justiciable”; and (3) includes “claims [that]
are untimely and barred.” Additionally, TeachGreat.org and its treasurer, Mr.
John C. Cozad, jointly filed an answer as intervenors, arguing that the
Appellants‟ claim should be dismissed because: (1) it “fails to state a claim
upon which relief may be granted” and further escapes eligibility for the
granting of relief because the Appellants did not “raise constitutional issues at
the earliest opportunity”; (2) “[s]ection 116.200 only authorizes suits
challenging the sufficiency of a petition to be brought following the [S]ecretary
of [S]tate‟s certification of sufficiency and thus this case is not ripe”; and (3)
“[c]onstitutional challenges to proposed initiatives are not ripe until after
4
passage of such measure[s] by the voters.” TeachGreat.org and Mr. Cozad also
jointly filed a motion for judgment on the pleadings.
In August 2014, Secretary Kander certified that, pursuant to the Missouri
Constitution and Chapter 116, the Petition contained enough valid signatures to
enable the proposed amendment to be included on the November 2014 ballot as
“Constitutional Amendment 3” (Initiative). A hearing was held on the
Appellants‟ claim and intervenors‟ motion.
In September 2014, the court entered judgment against the Appellants. It
found that, as a matter of law, the Initiative does not infringe upon article XII,
section 2(b), or article III, section 50, of the Missouri Constitution, nor does it
violate section 116.050. It dismissed the Appellants‟ claim and denied all relief
requested. The Appellants appeal.
Standard of Review
“Because this case was submitted on stipulated facts, our standard of
review is set forth in Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc
1979).” Knight v. Carnahan, 282 S.W.3d 9, 15 (Mo. App. W.D. 2009) (internal
citation omitted). Therefore, “[t]he only question before us is whether the trial
court made the proper legal conclusions from the stipulated facts.” Id.
Additionally, we “note that at no place in either the Missouri Constitution
or in the implementing statutes is any court granted the power to enjoin an
amendment from being placed on the ballot upon the ground that it would be
unconstitutional if passed and adopted by the voters.” Buchanan v.
5
Kirkpatrick, 615 S.W.2d 6, 12 (Mo. banc 1981) (internal citation omitted).
Moreover, when a court is “called upon to intervene in the initiative process,
[it] must act with restraint, trepidation[,] and a healthy suspicion of the partisan
who would use the judiciary to prevent the initiative process from taking its
course.” Brown v. Carnahan, 370 S.W.3d 637, 645 (Mo. banc 2012).
Legal Analysis
Jurisdictional Statement
This appeal involves challenges to a Petition in support of a proposed
constitutional amendment that has been certified to be included on the
November 2014 ballot. The Appellants have appealed to this court to reverse
the certification of the Petition.
Generally, such constitutional challenges are not ripe for adjudication
until after the results of an election are known. See, e.g., Brown, 370 S.W.3d at
645; Ketcham v. Blunt, 847 S.W.2d 824, 834 (Mo. App. W.D. 1992). However,
although the proposed amendment has not yet been considered by the voters,
we find that our review is not premature and that this appeal is ripe for
adjudication because it does not “encroach[] on the people‟s constitutional
authority” in the electoral process, but instead requests that we “determine
whether the constitutional requirements and limits of power, as expressed in the
provisions relating to the procedure and form of initiative provisions, have
been regarded.” Brown, 370 S.W.3d at 645 (internal quotation marks and
citation omitted). Furthermore, “Missouri law authorizes courts to conduct pre -
6
election review of the facial constitutionality of an initiative petition.” City of
Kansas City, Mo. v. Chastain, 420 S.W.3d 550, 554 (Mo. banc 2014).
Lastly, we have determined that the Missouri Supreme Court 4 does not
retain exclusive jurisdiction in this matter because it concerns a pre-election
challenge that involves a “[m]ere allegation[] of unconstitutionality” and not
constitutional issues that are “real and substantial, not merely colorable.”
Knight, 282 S.W.3d at 17. Therefore, our jurisdiction is proper.
The Appeal
The Appellants raise three points. In the first point, they argue that the
trial court erred as a matter of law in failing to reverse the certification of the
Petition because the Initiative “violates [a]rticle III, section 50, and [a]rticle
XII, section 2(b), of the Missouri Constitution.” The Appellants claim that, “on
its face,” section 3(i) of the Initiative “amends both [a]rticle I and [a]rticle IX.”
They contend that the Initiative would not only amend article IX, which
concerns education, but also article I, section 29, which concerns collective
bargaining. The Appellants further argue that “[a]rticle I, [s]ection 29[,]
currently contains a right to collectively bargain without exception,” and that
4
Article V, section 3, of the Missouri Constitution states:
The supreme court shall have exclusive appellate jurisdiction in all cases involving
the validity of a treaty or statute of the United States, or of a statute or provision of
the constitution of this state, the construction of the revenue laws of this stat e, the
title to any state office and in all cases where the punishment imposed is death. The
court of appeals shall have general appellate jurisdiction in all cases except those
within the exclusive jurisdiction of the supreme court.
7
“[v]oters are now asked whether to amend [it] by adding an exception to
collective bargaining rights.”
Article III, section 50, states, in relevant part:
Initiative petitions proposing amendments to the constitution shall
be signed by eight percent of the legal voters in each of two -thirds
of the congressional districts in the state, and petitions proposing
laws shall be signed by five percent of such voters. Every such
petition shall be filed with the secretary of state not less than six
months before the election and shall contain an enacting clause and
the full text of the measure. Petitions for constitutional
amendments shall not contain more than one amended and revised
article of this constitution, or one new article which shall not
contain more than one subject and matters properly connected
therewith[.]
Article XII, section 2(b), states, in relevant 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. No such
proposed amendment shall contain more than one amended and
revised article of this constitution, or one new article which shall
not contain more than one subject and matters properly connected
therewith.
Article I, section 29, states “[t]hat employees shall have the right to
organize and to bargain collectively through representatives of their own
choosing.” Section 3(i) of the proposed amendment states:
Certificated staff shall retain the right to organize and to
bargain collectively as provided in article I, section 29 of this
Constitution, except with respect to the design and implementation
of the performance based evaluation system established in this
article, and as otherwise referenced in this article.
8
Reading section 3(i) in context, as we must, it is apparent that section 3(i)
merely acknowledges article I, section 29, by including text from article I in
the proposed amendment to article IX. The mere reference to article I, section
29, does not directly or by implication amend article I, section 29. Though
section 3(i) continues, after referencing the text of article I, section 29, to
prohibit collective bargaining that would result in contract provisions
inconsistent with article IX, we do not agree with the Appellants‟ premise that
this constitutes a direct or implied amendment of article I, section 29. Article I,
section 29, permits collective bargaining. Section 3(i) in no way impairs the
fundamental right to collectively bargain. The Appellants acknowledge that the
right to collectively bargain protected by article I, section 29, has never
permitted employees to bargain for, or employers to agree to provide, rights
that are inconsistent with the Missouri Constitution.
We recognize that the evaluation systems anticipated by the amendment
to article IX would remain to be designed by school disticts and approved by
the Missouri Department of Elementary and Secondary Education. We also
recognize that the effect of section 3(i) will be to prevent collective bargaining
as to the “design and implementation” of these systems. However, we perceive
this practical impact to be in the nature of an effect on the fundamental right to
collectively bargain set forth in article I, section 29, and not an amendment to
that right. See Buchanan, 615 S.W.2d at 15. We are not saying that there could
never be a constitutional effect on the right to collectively bargain so excessive
9
in its scope as to render that right an illusory one. This is not such a case,
however.
The Appellants further argue that section 3(i) will have the effect of
retrospectively modifying existing collective bargaining agreements. They cite
to Independence-National Education Ass’n v. Independence School District,
223 S.W.3d 131, 136 (Mo. banc 2007), and American Federation of Teachers v.
Ledbetter, 387 S.W.3d 360, 363 (Mo. banc 2012), in support of their argument
that public employees have the right to organize and bargain collectively and
that a public employer may not “unilaterally impose a new agreement that
contradicts the terms of the agreements then in effect.” Independence Nat’l,
223 S.W.3d at 133. Section 3(i) of the Petition does not facially direct the
retroactive nullification of existing collective bargaining contracts. More to the
point, such an argument addresses a substantive, and not a procedural or facial,
constitutional concern that is not ripe for our consideration. See Brown, 370
S.W.3d at 645; see also Chastain, 420 S.W.3d at 554. If the petition is
approved by the voters, and if an attempt is thereafter made to apply the
amendments to article IX to require nullificiation of existing collective
bargaining contracts, then a person or an entity with standing to do so will be
free to raise the “unconstitutional as applied” challenge to article IX at that
time. Point one is denied.
In the second point, the Appellants argue that the trial court erred as a
matter of law in failing to reverse the certification of the Petition because the
10
Initiative “violates [a]rticle III, section 50, and [a]rticle XII, section 2(b), of the
Missouri Constitution” in that it “contains two subjects.”
“An initiative has one subject if all of its provisions are connected with a
central purpose.” United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d
at 137, 140 (Mo. banc 2000) (citing Buchanan, 615 S.W.2d at 13-14).
Additionally, “[a] measure may encompass one subject, and yet effect several
changes and incidents, if all are germane to its one controlling purpose.” Id.
(internal citation omitted).
“[T]he purpose of the prohibition [of] “multiple subjects in a single
ballot proposal is to prevent „logrolling,‟ a practice . . . whereby unrelated
subjects that individually might not muster enough support to pass are
combined to generate the necessary support.” Missourians to Protect the
Initiative Process v. Blunt, 799 S.W.2d 824, 830 (Mo. banc 1990). This
“prohibition is intended to discourage placing voters in the position of having
to vote for some matter [that] they do not support in order to enact that which
they earnestly support.” Id. Accordingly, “[t]he single subject matter rule is
the constitutional assurance that within the range of a subject and related
matters a measure must pass or fail on its own merits.” Id. (internal citation
omitted). This “purpose is restated in article XII, [section] 2(b).” Id.
Most pointedly, when “determining whether [a] proposed constitutional
amendment violates the „one subject‟ rule, there are certain general principles
that have been established.” Id. Proposed amendments “will be liberally and
11
nonrestrictively construed so that provisions connected with or incident to
effectuating the central purpose . . . will not be treated as separate subjects.”
Id. (citing, inter alia, Buchanan, 615 S.W.2d at 6). The Buchanan court
“probed the outer limits of what matters may be included in a single
constitutional proposition without violating the single subject rule.” Id. at 831.
In a proposal that included six subjects related to taxation, the court “found a
readily identifiable and reasonably narrow purpose that knitted all the diverse
provisions together,” which was “to limit taxes and spending by state and local
government.” Id. (Emphasis added.)
Here, the Appellants contend that the purposes contained within the
Initiative are impermissibly broad. We disagree. When reviewing the language
of each section contained within the Initiative, it is clear that its central focus is
on the parameters of teacher employment and retention within school districts.
Accordingly, because a “readily identifiable and reasonably narrow” focus
exists to connect these provisions into a “central purpose,” this Initiative does
not violate the single subject rule. This conclusion is solidified by our
discussion, above, recognizing that section 3(i) does not introduce a new or
second subject, but instead merely recognizes an obvious, and superfluously
stated, principle that collective bargaining cannot be employed to disregard
provisions of the Missouri Constitution. Therefore, point two is denied.
In the third point, the Appellants argue that the trial court erred as a
matter of law in failing to reverse the certification of the Petition because the
12
Initiative “violates [a]rticle III, section 50, of the Missouri Constitution and
section 116.050” by “fail[ing] to set out the full text of [a]rticle I, section 29,
which [it] amends.”
Section 116.050 states:
1. Initiative and referendum petitions filed under the provisions of
this chapter shall consist of pages of a uniform size. Each page,
excluding the text of the measure, shall be no larger than eight and
one-half by fourteen inches. Each page of an initiative petition
shall be attached to or shall contain a full and correct text of the
proposed measure. Each page of a referendum petition shall be
attached to or shall contain a full and correct text of the measure on
which the referendum is sought.
2. The full and correct text of all initiative and referendum petition
measures shall:
(1) Contain all matter which is to be deleted included in its proper
place enclosed in brackets and all new matter shown underlined;
(2) Include all sections of existing law or of the constitution which
would be repealed by the measure; and
(3) Otherwise conform to the provisions of article III, section 28
and article III, section 50 of the constitution and those of this
chapter.
“When interpreting a statute, we give words their plain and ordinary
meaning.” Knight, 282 S.W.3d at 18 (internal citation omitted). Reviewing
section 116.050 by its plain and ordinary meaning “does not require initiative
proponents to include all [of] those provisions „affected,‟ „impacted,‟ or
„modified‟ by a proposed measure.” Id. “Moreover, requiring proponents to
„ferret out‟ all such potential conflicts . . . would tend to stifle the initiative
process.” Id. (quoting Buchanan, 615 S.W.2d at 15). Additionally, pursuant to
13
the analysis contained in point one, we do not agree with the Appellants‟
assertion that this Initiative would amend article I, which renders moot the
Appellants‟ argument that the failure to include the full text of article I, section
29, “violates [a]rticle III, section 50.” Therefore, point three is denied.
Conclusion
For the above reasons, we affirm.
/s/ THOMAS H. NEWTON ___
Thomas H. Newton, Presiding Judge
Pfeiffer and Martin, JJ. concur.
14
Anita Marie Kuehner v. Jason Kander
Combined Opinion