Earth Island Institute d/b/a Renew Missouri, Missouri Coalition For The Environment v. Union Electric Company d/b/a Ameren Missouri, and Public Service Commission of the State of Missouri

SUPREME COURT OF MISSOURI
en banc
EARTH ISLAND INSTITUTE, d/b/a )
RENEW MISSOURI, )
)
Appellant )
)
MISSOURI COALITION FOR )
THE ENVIRONMENT, et al., )
)
Complainants, )
)
vs. ) No. SC93944
)
UNION ELECTRIC COMPANY, d/b/a )
AMEREN MISSOURI, )
)
Respondent, )
)
AND PUBLIC SERVICE COMMISSION )
OF THE STATE OF MISSOURI, )
)
Respondent. )

APPEAL FROM THE MISSOURI PUBLIC SERVICE COMMISSION

Opinion issued February 10, 2015

Earth Island Institute, doing business as Renew Missouri, and additional parties

(collectively “Renew Missouri”) appeal the Public Service Commission’s determination

that section 393.1050,1 a statute exempting electric utilities that met a certain renewable

energy target on a certain date from any solar energy requirements, was not invalidated

by the subsequent passage of a ballot initiative (“Proposition C”) that imposed solar

1
All statutory references are to RSMo Supp. 2008, unless otherwise indicated.
energy requirements on “all electric utilities.” The Commission found that the two

provisions could be harmonized by considering section 393.1050 a specific exemption to

the general provisions of the later-adopted initiative, particularly in light of section

393.1050’s use of the phrase “notwithstanding any other provision of law.”

This Court disagrees. Contrary to the Commission’s order, there is a conflict

between section 393.1050 and Proposition C as to solar energy requirements. A statute

cannot, merely by inclusion of the phrase “notwithstanding any other provision of law” in

legislation adopted after an initiative is approved for circulation, preclude the people by

initiative from adopting a law in conflict with the statute. While it is the case that the

failure of a subsequent legislature to delete the phrase “notwithstanding any other

provision of law” from the earlier legislation may mean that the subsequent legislature

intended the more specific earlier statute to remain effective, this reasoning cannot apply

here, where the statute was adopted after the wording of the initiative had been finalized

and approved for circulation, but prior to its passage at the general election. The

legislature could not preemptively negate the effect of the initiative before it had even

been voted on by the people and make the people’s later vote a meaningless act as to the

subject of the statute. This would infringe on the constitutionally protected initiative

rights of the people.

But this Court agrees that these principles do not preclude the legislature from

enacting a law in an area that already is the subject of an approved, but not yet passed,

initiative. To hold otherwise would allow the mere repetitive filing of an initiative

petition to forestall legislation in that subject area from ever becoming law, even if the
people repeatedly rejected the initiative. This would unduly and unnecessarily interfere

with the ability of the legislature to carry out its intended duties. Similarly, the passage

of an initiative does not preclude the legislature from later enacting contrary laws that

have the effect of limiting or repealing the statute adopted by initiative petition.

But neither of these situations is presented here; the only issue is whether the

legislature may negate in advance an initiative petition that has been approved for

circulation but prior to the time it is adopted by the people at an election. It may not. If a

proposed initiative is adopted by the people at an election, then a statute enacted by the

legislature during the interim between the initiative’s approval for circulation and its

passage is impliedly repealed to the extent of any conflict between the two measures.

Here, the people by their votes adopted Proposition C as law in November 2008.

Because section 393.1050 in its entirety is in conflict with Proposition C, and because an

initiative is effective on the date of its adoption, section 393.1050 was repealed by

implication upon adoption of Proposition C on November 4, 2008.

I. FACTUAL AND PROCEDURAL HISTORY

On February 4, 2008, the Secretary of State approved for circulation a ballot

initiative petition, subsequently designated Proposition C, which proposed a statutory

“Renewable Energy Standard” for utility companies operating in Missouri. The official

ballot title was certified on February 25, 2008. The Secretary issued a receipt on May 4,

2008, acknowledging delivery of a number of signatures later determined to be sufficient

3
to qualify the proposition for the ballot. 2

Proposition C, generally, proposed a statutory scheme under which electric

utilities would be required to provide progressively higher percentages of their electricity

sales from renewable energy resources − including wind, crops grown for energy, and

hydropower, among others – in certain calendar years. § 393.1030.1, RSMo Supp. 2009;

§ 393.1025(5), RSMo Supp. 2009. As relevant here, Proposition C included two specific

provisions concerning solar energy, codified in section 393.1030, RSMo Supp. 2009.

Section 393.1030.1 imposed a “solar carve out” described as “a portfolio requirement for

all electric utilities to generate or purchase electricity generated from renewable energy

resources” of which “[a]t least two percent of each portfolio requirement shall be derived

from solar energy.” Section 393.1030.3 mandated a solar rebate, by which “[e]ach

electric utility shall make available to its retail customers a standard rebate offer … for

new or expanded solar electric systems sited on customers’ premises ….” 3

In May 2008, after Proposition C was certified for placement on the 2008 general

election ballot, but before it could be voted on in November 2008, the General Assembly

passed Senate Bill No. 1181, codified as section 393.1050. SB 1181 stated that

“notwithstanding any other provision of law” an electrical corporation is exempt from

any solar carve out or solar rebate requirements if the company “achieves an amount of

eligible renewable energy … capacity equal to or greater than fifteen percent of such

2
Proponents circulated five different versions of the Renewable Energy Standard, but
only one was certified for the November 2008 ballot.
3
The legislature amended this subsection in 2013 to phase out the mandatory rebate for
solar electric systems becoming operational after June 30, 2020. H.B. 142, 97th Gen.
Assemb., 1st Reg. Sess. (Mo. 2013).

4
corporation's total owned fossil-fired generating capacity” by January 20, 2009. Section

393.1050 became effective August 28, 2008. At the November 4, 2008, general election,

voters approved Proposition C, and it became effective immediately upon passage. 4 Mo.

Const. art. III, § 51.

Empire District Electric Company was the only electric utility that claimed

eligibility for the solar carve out or rebate exemption set out in section 393.1050. Renew

Missouri thereafter filed a complaint with the Commission against Empire. 5 Renew

Missouri asserted that Empire could not claim the section 393.1050 exemption because

section 393.1050 was invalid 6 in that: (1) the legislature lacked authority to enact

legislation amending Proposition C while it was pending but before it had been voted on;

4
Pursuant to statutory provisions enacted under Proposition C, the Commission
prescribed by regulation the energy portfolio required of electric utilities, including the
solar energy requirements. The rules promulgated by the Commission became effective
on September 30, 2010, and appear at 4 CSR 240-20.100.
5
Although Renew Missouri also filed a complaint with the Commission against Union
Electric Company, doing business as Ameren Missouri, Renew Missouri does not seek
review of the portion of the Commission’s order dismissing the complaint against
Ameren. Only the portion of the order concerning Empire is at issue. For convenience,
both respondents on appeal, Empire and the Commission, will be referred to collectively
as “Empire.”
6
A separate set of plaintiffs originally challenged section 393.1050 through a declaratory
judgment action in the Cole County circuit court. The trial court dismissed the suit, and
the court of appeals affirmed, holding that the Commission had “primary statutory
authority over the cause.” Evans v. Empire Dist. Elec. Co., 346 S.W.3d 313, 319 (Mo.
App. 2011). Pursuant to section 386.390.1, individuals may file complaints with the
Commission “setting forth any act or thing done or omitted to be done by any
corporation, person or public utility … in violation, or claimed to be in violation, of any
provision of law.”
In finding that the Commission had “primary statutory authority” in this case,
Evans recognized that the Commission “has no authority to declare a statute invalid” but
held that the Commission does have “the power to determine if the provisions of
Proposition C are in irreconcilable conflict or can in fact be harmonized with the
provisions of section 393.1050.” 346 S.W.3d at 318, 319.

5
(2) section 393.1050 irreconcilably conflicts with Proposition C and, as the later enacted

law, Proposition C repealed section 393.1050 by implication; and (3) there is no rational

basis for exempting Empire but no other electrical corporations from the solar

requirement such that section 393.1050 constitutes a special law in violation of article III,

section 40 of the Missouri Constitution.

The Commission determined: (1) the pendency of Proposition C did not prevent

the legislature from passing related legislation; (2) Proposition C did not impliedly repeal

section 393.1050 because the two laws could be harmonized; and (3) section 393.1050 is

not a special law. Renew Missouri appeals.

This Court affirms the holding that the legislature had the authority to adopt

section 393.1050 but reverses the Commission’s holding that the two laws could be

harmonized. Section 393.1050 was impliedly repealed by the adoption of Proposition C

because it conflicted with the latter law. Because of this resolution of the first two issues,

the third, special law, claim has become moot and is not further addressed.

II. STANDARD OF REVIEW

This Court has exclusive appellate jurisdiction over challenges to the validity of a

state statute. 7 Mo. Const. art. V, § 3. Questions of law, including constitutional

7
Empire argues that, because the issue here is the lawfulness of the Commission’s order,
not the validity of the statute, jurisdiction is properly vested in the court of appeals,
noting that section 386.510, RSMo Supp. 2013, governing review of Commission orders,
states “the commission shall forward [the notice of appeal] to the appellate court with the
territorial jurisdiction over the county where the hearing was held or in which the
commission has its principal office for the purpose of having the reasonableness or
lawfulness of the original order … inquired into or determined.”

6
challenges to a statute, are reviewed de novo. Rentschler v. Nixon, 311 S.W.3d 783, 786

(Mo. banc 2010).

Pursuant to section 386.510, RSMo Supp. 2013, when reviewing an order issued

by the Commission: “[F]irst, the reviewing court must determine whether the

[Commission]’s order is lawful; and second, the court must determine whether the order

is reasonable.” Office of Pub. Counsel v. Missouri Pub. Serv. Comm’n, 409 S.W.3d 371,

375 (Mo. banc 2013) (quoting State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n,

120 S.W.3d 732, 734 (Mo. banc 2003)). The appellant bears the burden of proving that

the order is unlawful or unreasonable. Office of Pub. Counsel, 409 S.W.3d at 375. Legal

questions are reviewed de novo, and the Court determines the lawfulness of an order “by

whether statutory authority for its issuance exists.” Id. (quoting AG Processing, 120

S.W.3d at 734).

The reasonableness of an order is assessed based on whether it “is supported by

substantial, competent evidence on the whole record; the decision is not arbitrary or

capricious or where the [Commission] has not abused its discretion.” Office of Pub.

Counsel, 409 S.W.3d at 375 (internal citation omitted).

But, as it did before the Commission, Renew Missouri also challenges the
constitutional validity of section 393.1050 on the ground that it is a special law in
violation of article III, section 40 of the Missouri Constitution. “When a real and
substantial constitutional question is raised, this Court has jurisdiction to determine it.”
Mayes v. Saint Luke’s Hosp. of Kansas City, 430 S.W.3d 260, 270 (Mo. banc 2014). Due
to its resolution of the first two issues, however, this Court does not reach the
unconstitutional special law claim: “Once the case properly invokes this Court's
jurisdiction, the ultimate determination that the constitutional issue is not meritorious or
that the merits of the constitutional issue should not be addressed does not retroactively
deprive this Court of jurisdiction.” Id.

7
III. PROPOSITION C REPEALED SECTION 393.1050 BY IMPLICATION

Proposition C directs the Commission to “prescribe by rule a portfolio requirement

for all electric utilities to generate or purchase electricity generated from renewable

energy resources.” § 393.1030.1, RSMo Supp. 2009 (emphasis added). It further states

that “[a]t least two percent of each portfolio requirement shall be derived from solar

energy.” Id. In other words, the initiative requires all electric companies, without

exception, to satisfy the 2-percent solar carve out. 8

By contrast, the legislatively adopted section 393.1050 states, in relevant part:

Notwithstanding any other provision of law, any electrical corporation as
defined by subdivision 15 of section 386.020 which, by January 20, 2009,
achieves an amount of eligible renewable energy technology nameplate
capacity equal to or greater than fifteen percent of such corporation's total
owned fossil-fired generating capacity, shall be exempt thereafter from a
requirement to pay any installation subsidy, fee, or rebate to its customers
that install their own solar electric energy system and shall be exempt from
meeting any mandated solar renewable energy standard requirements.

(Emphasis added.) Section 393.1050 thereby states that, notwithstanding any other

provision of law, electric companies that provided 15 percent of their electric utility’s

sales from renewable energy sources by January 20, 2009, are exempt from any

mandated solar renewable energy standard requirements.

A. Proposition C and Section 393.1050 Conflict Despite the Inclusion of a
“Notwithstanding Any Other Provision of Law” Clause in the Statute

The first question before the Court is whether the two provisions at issue are in

irreconcilable conflict. State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo.

8
The Commission’s order in this case confirms this finding: “The terms of Proposition C
… do not exempt any electric utility from the solar energy requirements of that statute.”

8
banc 2007) (identifying conflict between two statutes as “a precondition to the

application of the principles of statutory construction”). When “two statutory provisions

covering the same subject matter are unambiguous standing separately but are in conflict

when examined together, a reviewing court must attempt to harmonize them and give

them both effect.” South Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d

659, 666 (Mo. banc 2009).

Empire argues that, because section 393.1050 is the more specific statute, in that it

provides an exemption from the solar carve out and rebate requirements for certain

electric utilities, it preempts those portions of the subsequently enacted Proposition C that

would require Empire to meet those solar energy requirements. For this proposition,

Empire relies on the well-established principle that “[w]here there is no clear intention

otherwise, a specific statute will not be controlled or nullified by a general one, regardless

of the priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550-51 (1974). The

general/specific canon, however, “is not an absolute rule, but is merely a strong

indication of statutory meaning that can be overcome by textual indications that point in

the other direction.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct.

2065, 2072 (2012).

Empire argues that the intention for the more specific to prevail over even a later

enacted general law is demonstrated by the inclusion in section 393.1050 of the words,

“notwithstanding any other provision of law.” Empire says that this demonstrates the

legislature’s intent that the exemption it enacted in section 393.1050 during the interim

period between the certification of Proposition C and its adoption by the people should

9
negate the effect of Proposition C to the extent that the two conflict.

Empire is correct that, were this Court construing two legislatively adopted

statutes to see which prevailed when their terms were inconsistent, the prefatory

“notwithstanding any other provision of law” language in section 393.1050 would

eliminate any potential conflict with the competing statute. As noted in Riley, “to say

that a statute applies ‘notwithstanding any other provision of the law’ is to say that no

other provisions of law can be held in conflict with it. … the ‘Notwithstanding’ clause

does not create a conflict, but eliminates the conflict that would have occurred in the

absence of the clause.” 236 S.W.3d at 632.

When two already adopted statutes are at issue, this rule of construction applies.

In such a case, if the later-adopted statute contains the “notwithstanding any other

provision of law” language, it clearly indicates an intent for that later-adopted statute to

prevail to the extent that the two statutes are inconsistent. If the earlier-adopted statute

contains the “notwithstanding any other provision of law” language, the legislature’s

decision to leave that language in place rather than repealing it at the time of the adoption

of the later, partially inconsistent statute also indicates an intent that the earlier statute is

to continue to be given effect to the extent that the two are inconsistent.

Here, the issue before the Court is not how to construe two already adopted

statutes, but how to construe a statute adopted by the legislature after the approval for

circulation of an initiative with which it is inconsistent, but prior to the time that the

people have voted to adopt that initiative. In other words, the issue is whether the

legislature, by use of such “notwithstanding any other provision of law” language, has the

10
authority to negate or repeal in advance of its adoption that portion of an initiative with

which it is inconsistent and that is later adopted by the people. This Court answers in the

negative and, in so doing, determines that section 393.1050 cannot be harmonized with

Proposition C for the reasons that follow.

B. The Legislature May Not Repeal an Initiative in Whole or in Part in
Advance of its Passage

“Every [initiative] 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.” Mo. Const. art. III, § 50. “Each page of an initiative petition shall be attached

to or shall contain a full and correct text of the proposed measure.” § 116.050.1, RSMo

2000. In this case, the Secretary of State on February 4, 2008, approved for circulation

the initiative petition that ultimately became Proposition C. The legislature did not pass

section 393.1050 until May 16, 2008. By that point, the language of the initiative was

set.

If section 393.1050 were to be permitted to preemptively modify the initiative

under these circumstances, then it would allow the legislature to undercut or undo a law

initiated by the people before it could ever be voted on merely by passing a related statute

with more specific terms or containing the clause “notwithstanding any other provision of

law.” Here, it would mean that, even though the initiative process had been properly

followed, by the time that the voters enacted Proposition C, some of its provisions would

never become law due to a statute passed by the legislature months earlier.

Such unilateral, preemptive action by the legislature serves as an end run around

11
the constitutionally protected right of the people of Missouri to enact legislation by ballot

initiative. Mo. Const. art. III, § 49 (“The people reserve power to propose and enact …

laws and amendments to the constitution by the initiative, independent of the general

assembly”). It is also misleading to the voters who would have been unaware that the

unqualified solar mandate they were voting to approve had, in fact, been partially

preemptively repealed before they had the opportunity to cast their votes. To the extent

that a statute, enacted after an initiative is approved for circulation but prior to its

passage, limits the effect of the later-adopted initiative, the statute is impliedly repealed.

This Court previously rejected a similar attempt to negate in advance the effect of

a referendum ordered by the people 9 in State ex rel. Drain v. Becker, 240 S.W. 229 (Mo.

banc 1922). There, while the proposed referendum was pending but before it had been

voted on by the people, the legislature purported to repeal the legislation that was the

subject of the referendum and to enact a new statute that retained the essential terms of

the former legislation. Id. at 230. It then argued that this new statute could take effect,

regardless of what the people voted on the matter referred, because it was later adopted

and was not itself subject to the referendum.

This Court properly rejected this attempt at an end run around the referendum. It

held that, once the right of referendum has been invoked, the legislature “is divested of

all power in regard to the matter referred until the action of the people has been exercised

by a vote upon same.” Id. at 232. To hold otherwise, the Court said, would allow the

9
“A referendum may be ordered … either by petitions signed by five percent of the legal
voters in each of two-thirds of the congressional districts in the state, or by the general
assembly, as other bills are enacted.” Mo. Const. art. III, § 52(a).

12
legislature “to ignore or to attempt to hold for naught the action of the people in referring

the measure.” Id.

Although Drain is distinguishable from the instant case both in its procedural

posture before the Court and in the distinctions between the purpose and process of a

referendum and an initiative, its holding that preemptive legislation cannot negate a

constitutional right of the people is determinative. Indeed, Drain discussed this concern

in the context of both the initiative and referendum processes:

Precedents are cited to give color of authority to the action of the General
Assembly in the attempted adoption of a measure of like tenor and
application to the one referred while the latter was in process of
reference. These rulings will be found limited to the amendment or repeal
by the Legislature of [already] initiated or referred acts, and not to those in
process of initiation or reference. … When, therefore, it is said that the
power of the Legislature has been generally sustained to repeal or modify
initiative or referendum legislation, only enacted legislation is meant and
not that in process of enactment.

Id. (emphasis added).

In other words, Drain said that once a statute is adopted by initiative or

referendum, then the legislature is free to amend or repeal it as it would any other statute.

Id. But the legislature may not preempt the effect of a later-adopted referendum or

initiative while it is still pending before the voters by enacting legislation inconsistent

with the measure during that interim period. Id.

The Court reaffirms this reasoning here. The legislature could not preempt the

effect of all or part of Proposition C so that, even when adopted by the people, some of its

provisions never would take effect. Rather, like in Drain, this Court reaffirms that, while

the legislature may amend or repeal a statute adopted by initiative or referendum after it

13
has been adopted, it may not validly do so once the measure is approved for circulation

and prior to its passage.

The dissent, while for the most part reiterating the facts and law already set out in

this opinion, then posits that the majority’s holding improperly gives special treatment to

statutes adopted by initiative by treating them differently than statutes adopted by the

legislative process. That is not the case. Once statutes are adopted, whether by initiative

or by legislative action, they are both identically subject to repeal or amendment.

But the process of adoption of statutes by initiative is, in fact, different from the

process of adoption of statutes by the legislature. In the case of two statutes proposed for

enactment by the legislature, the legislature can consider either or both, and in the event

of conflict if both are adopted, rules of statutory construction can assist in interpreting the

legislature’s meaning in adopting both.

In the case of a statute and an initiative, two different adopting bodies are

involved, and a determination of legislative intent does not determine the people’s intent

in adopting an initiative. Further, unlike the case with a legislatively adopted statute, the

initiative process by its nature takes a six-month or longer period of time as the petition is

approved, signatures obtained, and an election held. Recognition of and respect for this

separate and lengthy process, a process the people reserved for themselves in Missouri’s

constitution, is what is reflected in this Court’s holding here and in Drain: the legislature

cannot render meaningless the people’s right to adopt a law by initiative by negating that

law through legislative adoption of a statute after the initiative petition is proposed for

circulation but before the people have had an opportunity to adopt it.

14
 But this Court also affirms the Commission’s determination that the legislature

may act “on other, related aspects of an issue that are subject to a pending initiative so

long as it does not interfere with the pending initiative.” To the extent that Drain can be

read to hold that the legislature is precluded from enacting any legislation related to a

pending ballot initiative, it is overruled. Otherwise, persons or groups who wish to

prevent the legislature from adopting certain policies could preclude legislation on those

issues indefinitely by the simple expedient of again and again proposing inconsistent

initiatives that are again and again defeated at the ballot box. This could prevent the

legislature from fulfilling its legislative duties. Further, it is inconsistent with this

Court’s long recognition that, once a statutory initiative proposition has been adopted, the

legislature has the right thereafter to amend the statute so adopted, just as it can amend

any other statute adopted through the usual legislative process. See, e.g., Harris v.

Missouri Gaming Comm’n, 869 S.W.2d 58, 61 (Mo. banc 1994) (“The power to repeal or

modify a referendum law is within the power of the legislature”).

Moreover, preclusion of any legislation on an issue that is the subject of an

initiative petition is not necessary to effectuate the principles set out in Drain and

reaffirmed here. An initiative can be inconsistent with an intervening statute only if the

initiative is adopted by the people. If not adopted, then any intervening statute would

continue in effect because it would not have been impliedly repealed by passage of the

initiative.

As applied here, the inconsistency in the law arose on November 4, 2008, when

the people voted to approve Proposition C. Proposition C became immediately effective.

15
Mo. Const. art. III, § 51. At that point, the potential inconsistency of the two provisions

became an actual inconsistency. To the extent of that inconsistency, for the reasons

already discussed, the conflict must be resolved by giving effect to the provision the

people adopted by initiative. Otherwise, to paraphrase Drain, the legislature could

“ignore or [] attempt to hold for naught the action of the people in [initiating] the

measure.” Drain, 240 S.W. at 232. The adoption of Proposition C repealed section

393.1050 by implication, for “[w]hen two statutes are repugnant in any of their

provisions, the later act, even without a specific repealing clause, operates to the extent of

the repugnancy to repeal the first.” Cnty. of Jefferson v. Quicktrip Corp., 912 S.W.2d

487, 490 (Mo. banc 1995) (internal citation omitted).

IV. CONCLUSION

Having found the two statutes to be in conflict, Proposition C controls over the

statute enacted between its approval for circulation and its passage. Therefore, the

prospective exemption created by section 393.1050 was repealed by the passage of

Proposition C. To the extent that it is inconsistent with this holding, the Public Service

Commission’s order is reversed.

_________________________________
LAURA DENVIR STITH, JUDGE

Russell, C.J., Draper and Teitelman, JJ., and
Van Amburg, Sp.J., concur; Fischer, J., dissents
in separate opinion filed; Breckenridge, J.,
concurs in opinion of Fischer, J. Wilson, J.,
not participating.

16
 SUPREME COURT OF MISSOURI
en banc

EARTH ISLAND INSTITUTE, d/b/a )
RENEW MISOURI, )
)
Appellant, )
)
MISSOURI COALITION FOR )
THE ENVIRONMENT, et al., )
)
Complainants, )
)
v. ) No. SC93944
)
UNION ELECTRIC COMPANY, d/b/a )
AMEREN MISSOURI, )
)
Respondent, )
)
AND PUBLIC SERVICE COMMISSION )
OF THE STATE OF MISSOURI, )
)
Respondent. )

DISSENTING OPINION

In my view, statutes enacted by the General Assembly are on equal footing with

statutes passed by initiative petition; therefore, I respectfully dissent. The principal

opinion rationalizes that a statute enacted by initiative petition pursuant to article III,

section 49 of the Missouri Constitution should receive preferential rules of interpretation

over a statute enacted by the General Assembly. There is no text in the Missouri

Constitution or historical support that the original intent was for initiative legislation to
have special treatment above representative legislation. In fact, article III, section 52(b)

expressly provides that the initiative process, "shall not be construed to deprive any

member of the [G]eneral [A]ssembly of the right to introduce any measure." Well-settled

principles of statutory interpretation require this Court to harmonize § 393.1030 with

§ 393.1050, 1 which both support the policy decision to encourage the use of renewable

energy. I would affirm the Public Service Commission's order, which applied this well-

settled principle and determined that these statutes were not in conflict. 2

Factual and Procedural Background

The Secretary of State certified Proposition C for the November 4, 2008 ballot. It

became law when it passed by a majority vote on the day of the election. See Mo. Const.

art. III, § 51. The relevant portion of Proposition C, codified at § 393.1030, has three

parts. First, it requires electric utilities to increase the percentage of electricity they

generate or purchase from "renewable energy resources," on a progressive basis, reaching

15% of their sales in each calendar year beginning in the year 2021. Section 393.1030.1.

Second, at least 2% of that 15% must derive from solar energy—commonly referred to as

the "solar carve out." Id. And third, it imposes an energy buy-back program on electric

utilities, requiring them to give customers rebates for installing or expanding solar

electric systems on their own property. Section 393.1030.3.

1
Statutory citations are to RSMo Supp. 2013.
2
The principal opinion does not reach Renew Missouri's "special laws" challenge under article
III, section 40 of the Missouri Constitution. For that reason, I will not address it here, other than
to state that the special laws provisions is not violated.

2
 The General Assembly enacted S.B.1181, which was codified in § 393.1050 and

became effective on August 28, 2008, after Proposition C was certified for the ballot but

before the proposition became law. Section 393.1050 begins with the phrase

"[n]otwithstanding any other provision of law." It then exempts any electrical

corporation from any solar energy standard or rebate requirement for self-installed solar

electric energy systems if, by January 20, 2009, the company's renewable energy capacity

had reached 15% of its total owned fossil-fired generating capacity. Section 393.1050.

There is no dispute Empire met these requirements.

Renew Missouri filed a complaint with the Public Service Commission against

The Empire District Electric Company alleging it was not in compliance with

§ 393.1030; Empire claimed exemption from the solar carve out and rebate provisions

under § 393.1050. Renew Missouri argued to the Commission that the adoption of

§ 393.1030 by initiative impliedly repealed the legislature's solar exemptions, set out in

§ 393.1050. The Commission, applying this Court's well-settled rules of interpretation,

not surprisingly concluded that the two statutes were not in conflict and dismissed Renew

Missouri's complaint. The principal opinion reverses the Commission and creates a

special rule of statutory interpretation that just applies to initiative legislation in this

particular factual scenario. 3 It holds, "The legislature could not preemptively negate the

effect of the initiative before it had even been voted on by the people and make the

3
The principal opinion tacitly recognizes the General Assembly could reenact the provisions of
§393.1050.
3
people's later vote a meaningless act as to the subject of the statute. This would infringe

on the constitutionally protected initiative rights of the people." Slip op. at 2.

Analysis

In my view, the Commission's order should be affirmed. The principal opinion

assumes that § 393.1030 impliedly repealed § 393.1050 "to the extent of any conflict" yet

concedes that "Empire is correct that were this Court construing two legislatively adopted

statutes to see which prevailed where their terms were inconsistent, the prefatory

'notwithstanding any other provision of law' language in section 393.1050 would

eliminate any potential conflict with the competing statute." Slip op. at 3, 10. The

principal opinion claims that the constitution requires this Court to strike those words

from the statute and find a conflict when none would otherwise exist. However, these

statutes, as recognized by the Commission, serve a common rational policy to encourage

renewable energy and are easily harmonized. Contrary to the principal opinion's holding,

article III, sections 49 to 52 contemplate that no greater importance should be given to

statutes passed by initiative than to statutes enacted by the General Assembly.

The principal opinion claims that Proposition C should be deemed to have

impliedly repealed S.B. 1181, but: "'Repeal by implication is disfavored, and if two

statutes can be reconciled then both should be given effect."' Crawford v. Div. of

Employment Sec., 376 S.W.3d 658, 665 (Mo. banc 2012). "If by any fair interpretation

both statutes may stand, there is no repeal by implication and both statutes must be given

their effect. When two provisions are not irreconcilably inconsistent, both must stand

even if some tension exists between them." Turner v. Sch. Dist. of Clayton, 318 S.W.3d

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660, 667 (Mo. banc 2010) (internal quotation marks and citations omitted). This Court

has made clear that, when two statutes address the same subject matter and one states,

"notwithstanding any other provision of the law," by their plain language, they do not

conflict. State ex rel. City of Jennings v. Riley, 236 S.W.3d 630, 631-32 (Mo. banc

2007). 4

Initiative and Referendum

The People of the State of Missouri adopted a constitution dividing the powers of

government into "three distinct departments": legislative, executive, and judicial. Mo.

Const. art. II, § 1.; Mo. Const. of 1875, art. III; Mo. Const. of 1820, art. II. Initially, the

legislative power was vested solely in the General Assembly, consisting of a senate and

house of representatives. Mo. Const. of 1875, art. IV, § 1; Mo. Const. of 1820, art. III,

§ 1. In 1908, the People adopted the initiative and referendum by constitutional

amendment, "reserv[ing] to themselves" the power to enact laws and reject the General

Assembly's enactments. Mo. Const. of 1875, art. IV, § 57 (1908); 1909 Mo. Laws 906,

906. The 1945 revisions to Missouri Constitution retained the initiative and referendum

provisions in substantially the same form. See Mo. Const. art. III, §§ 49-53; Gen.

Assemb. Comm. on Legis. Research, Report No. 5: Constitution of the State of Missouri

with Annotations and Index, 55-57 (Lester G. Seacat ed., 1945).

4
"'This Court's primary rule of statutory interpretation is to give effect to legislative intent as
reflected in the plain language of the statute at issue.'" Ivie v. Smith, 439 S.W.3d 189, 202 (Mo.
banc 2014). Statutes addressing the same subject matter (in other words, in pari materia) "are
intended to be read consistently and harmoniously." State ex rel. Rothermich v. Gallagher, 816
S.W.2d 194, 200 (Mo. banc 1991). "All consistent statutes relating to the same subject matter
5
 However, initiatives and referenda differ fundamentally. A referendum petition

allows the People to "approve or reject" laws already made. Mo. Const. art. III, § 49. Its

purpose is to retain in the People a check on whether representative legislation is good or

bad, which is analogous to the governor's power to check the General Assembly by

signing or vetoing bills. See State ex rel. Drain v. Becker, 240 S.W. 229, 231 (Mo. banc

1922); Brown v. Carnahan, 370 S.W.3d 637, 673 (Mo. banc 2012) (Fischer, J.,

concurring); 82 C.J.S. Statutes §§ 143, 146 (2009). In contrast, an initiative petition

allows the People to "propose and enact or reject laws . . . independent of the general

assembly." Mo. Const. art. III, § 49. The purpose of the initiative is to allow the People

to check an idle representative government when work needs to be done. See State ex rel.

Drain, 240 S.W. at 231; Brown, 370 S.W.3d at 673 (Fischer, J., concurring); 82 C.J.S.

Statutes § 144.

The power of the People to legislate by initiative is on "equal footing" with the

General Assembly's power to legislate. Cathy R. Silak, The People Act, the Courts

React: A Proposed Model for Interpreting Initiatives in Idaho, 33 IDAHO L. REV. 1, 18

(1996); see 82 C.J.S. Statutes §§ 146, 180 (collecting cases); 42 Am. Jur. 2d Initiative

and Referendum § 1, at 506 & n.3 (2010) (collecting cases). In other words, neither is

less than nor greater than the other. See 82 C.J.S. Statutes §§ 146, 180. Accordingly, the

General Assembly is free to modify, amend, or repeal statutes passed by initiative. Mo.

are in pari materia and are construed together as though constituting one act, whether adopted at
different dates or separated by long or short intervals." Id.
6
Const. art. III, § 54(b); 82 C.J.S. Statutes §§ 147, 180; see also State ex rel. Halliburton v.

Roach, 130 S.W. 689, 693-94 (Mo. banc 1910).

The debates of the constitutional convention of 1945 support this principle. See

Debates of the Missouri Constitutional Convention 1945, vol. II at 399-400, 441-43, 524-

28 (Stenotype Studios of St. Louis 1945). Prior to 1945, the constitution required bills

referring measures to the People to contain certain language in an "enacting clause," but it

did not expressly require an enacting clause for initiative petitions. 5 See Mo. Const. of

1875, art. IV, § 57 (1908). The 1945 constitution added: (1) an express enacting clause

requirement for initiatives; and (2) a single subject requirement, in order to bring

initiative legislation in line with enactments of the General Assembly. See Mo. Const.

art. III, § 50; Debates, at 399-400; 441-43.

Although some delegates initially doubted the legislature's power to later repeal or

modify initiative legislation, see id. at 510-11, 522, there was a consensus that

enactments by the General Assembly had equal force with initiative legislation. See id. at

526. The convention, after voting to retain the initiative, struck down as unnecessary a

substitute amendment stating that "[a] law enacted by the initiative shall have the force of

a law enacted by the General Assembly and no other." Id. at 524, 528. The purpose of

the original amendment, as well as the substituted language, was to place the same limits

on the initiative that applied to the General Assembly. Id. at 524-26. The proponent of

the substitute amendment offered this alternative language in part because a minority of

5
The enacting clause states, "Be it enacted by the people of the state of Missouri." Mo. Const.
art. III, § 50; Mo. Const. of 1875, art. IV, § 57 (1908).
7
delegates had suggested initiative legislation might be construed to have more force than

the General Assembly's enactments. See id. at 526. That delegate eventually conceded,

however, that his substitute amendment was unnecessary for that purpose because it

would not change then existing law and was "merely a precaution." Id.

Another delegate summed up his own understanding of the equal footing

principle:

Well, now if there is any effort here on the part of any one to give the
people right to enact a law by the initiative that doesn't have the same force
of effect as a law like the Legislature why I can't conceive it. . . . I certainly
won't feel that any lawyer or a Supreme Court judge would take that view.
. . . [T]he gentleman has not yet convinced me that his substitute would
bring any change in addition to what already exists under the law.

Id. The convention rejected the substituted language because the principle that initiative

laws bear equal force to laws enacted by the General Assembly was already understood.

See id. at 526-28; State ex rel. Halliburton, 130 S.W. at 693-94; see also State v.

Honeycutt, 421 S.W.3d 410, 416 (Mo. banc 2013) (noting that the delegates to the 1875

constitution refused to define the term "retrospective" because the term already had an

accepted meaning).

Drain Supports Harmonizing §§ 393.1030 and 393.1050

The principal opinion relies on Drain. The Drain case, however, differs from this

case fundamentally because it addressed a referendum, not an initiative. 240 S.W. at 230.

Before the referendum in that case could be voted, the General Assembly repealed the

statute at issue and enacted another substantially similar one in its place. Id. If the repeal

were valid, the vote on the referendum would have been meaningless because the original

8
statute no longer would have existed. See id. at 232; see also id. at 235 (Graves, J.,

concurring). This Court held that the General Assembly lacked authority to repeal the

statute because the Missouri Constitution prohibited the General Assembly from

nullifying the referendum. Id. at 232. But see McBride v. Kerby, 260 P. 435, 437-38

(Ariz. 1927) (refusing to follow Drain and holding that the Arizona legislature may enact

legislation on the same subject matter as a pending referendum) (overruled on other

grounds by Adams v. Bolin, 247 P.2d 617, 621 (Ariz. 1952)).

Unlike the referendum in Drain, which the General Assembly attempted to

completely nullify, the initiative proposal here remains operative in conjunction with, and

is easily harmonized with, the General Assembly's enactment. Both satisfy the policy of

encouraging renewable energy. Section 393.1050 did not preemptively repeal the 15%

renewable energy requirement set out in § 393.1030. The General Assembly's policy

decision to not impose the solar carve out and rebate requirements on electrical

corporations who met the 15% requirement advances the policy of utility companies

using renewable energy by offering an incentive for early substantial compliance. The

principal opinion concedes the two statutes can easily be harmonized and would not raise

any concerns if both were enacted into law by the General Assembly or initiative process.

Slip op. at 10. See State ex rel. Rothermich, 816 S.W.2d at 200.

No Special Rules for Initiatives

The principal opinion's holding actually goes beyond the holding of Drain and

creates a special rule giving initiative legislation precedence over representative

legislation. This is not supported by article III, section 49, which provides in full:

9
 Reservation of power to enact and reject laws.—The people reserve
power to propose and enact or reject laws and amendments to the
constitution by the initiative, independent of the general assembly, and also
reserve power to approve or reject by referendum any act of the general
assembly, except as hereinafter provided.

Article III, section 51 provides:

Appropriations by initiative—effective date of initiative laws—
conflicting laws concurrently adopted.—The initiative shall not be used
for the appropriation of money other than of new revenues created and
provided for thereby, or for any other purpose prohibited by this
constitution. Except as provided in this constitution, any measure proposed
shall take effect when approved by a majority of the votes cast thereon.
When conflicting measures are approved at the same election the one
receiving the largest affirmative vote shall prevail.

Article III, section 52(b) provides:

Veto power—elections—effective date.—The veto power of the governor
shall not extend to measures referred to the people. . . . This section shall
not be construed to deprive any member of the general assembly of the
right to introduce any measure.

These provisions provide the only limitations on the initiative process. These

provisions do not limit the General Assembly's coequal power to legislate, nor do any of

the other provisions that follow article III, section 49. The General Assembly is free to

legislate concurrently on the same subject. The only prohibition in the initiative process

is that which relates to the veto power of the Governor. Mo. Const. art. III, § 52(b).

There is nothing contained in the Missouri Constitution that either expressly or

impliedly, in any degree, conflicts with, inhibits, limits, abridges, or prohibits the power

of the General Assembly originally granted to it to enact, amend, modify or repeal any

law. The fact that the People themselves may propose or enact laws in connection with

10
the General Assembly in no manner minimizes, conflicts with, or prohibits the General

Assembly from itself also enacting the law that might be desired by the People. The

evident purpose of the constitutional provisions concerning the initiative process was not

to curtail or limit the powers of the General Assembly to enact laws, but the purpose was

to compel the General Assembly of measures desired by the People, and, if the General

Assembly neglected to act as so desired by the People, that then the People, by means of

the initiative might enact such measures into laws themselves. 6

Of the 20 other state constitutions that allow legislation by initiative, many

specifically limit their legislatures' power to either repeal or amend initiative legislation.

See Nicholas R. Theodore, We the People: A Needed Reform of State Initiative and

Referendum Procedures, 78 MO. L. REV. 1401, 1412 (2013); Initiative and Referendum

States, NAT'L CONF. OF STATE LEGISLATURES (last updated Sept. 2012). 7 California

outright bars its legislature from independently repealing or amending initiative

legislation. Theodore, supra, at 1412; Cal. Const. art. II, § 10(c). Some states impose a

waiting period for repeals of initiative legislation (e.g., Alaska) or impose a supermajority

vote for amendments or repeals (e.g., Arkansas). Theodore at 1412; Alaska Const. art.

XI, § 6; Ark. Const. amend. 7. Others impose a supermajority vote for a specified

waiting period (e.g., Washington) or bar repeals but allow amendments furthering the

6
And, recognizing the right of the General Assembly to enact laws as it pleased, within all its
constitutional powers, the referendum was designed as a check upon all legislative enactments
not favored by the People.
7
Available on file with this Court and at http://www.ncsl.org/research/elections-and-
campaigns/chart-of-the-initiative-states.aspx (last visited Jan. 29, 2015).
11
initiative's purpose if there is a supermajority vote (e.g., Arizona). Theodore at 1412;

Wash. Const. art. II, § 1(c); Ariz. Const. art. IV, pt. 1, § 1(6)(B)-(C).

If the framers of the Missouri Constitution had adopted language something like

the following: "No legislature shall have power to repeal any initiative measure referred

to a vote of the people," or "Initiated laws can be amended or repealed only by a vote of

the people," then the Constitution would have expressly prohibited the General Assembly

from amending or repealing initiated laws. But no such limitation of the legislative

power appears in the Missouri Constitution. Renew Missouri has, in effect, convinced a

majority of this Court to read into the constitution something that is not either expressed

or implied therein.

The result of the principal opinion may be a good policy decision, but the Missouri

Constitution contains no limitations on the General Assembly's power to legislate before,

during, or after the initiative petition. "Judicial intervention is not an appropriate

substitute for the give and take of the political process." State ex rel. Humane Soc'y of

Mo. v. Beetem, 317 S.W.3d 669, 674 (Mo. App. 2010). The principal opinion

acknowledges that, under the general rule of statutory interpretation, both statutes would

be given effect. It creates a special rule of statutory interpretation by holding that

§ 393.1030 impliedly repealed § 393.1050 on the theory that the General Assembly

cannot change the effect of an initiative while it is pending. This new rule of statutory

interpretation has no foundation in the text of the Missouri Constitution.

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 Conclusion

Empire complies with the 15% renewable energy requirement set out in

§ 393.1030.1. Section 393.1050 was passed to encourage reaching the 15% requirement

earlier. In my view, the People by adopting a provision for initiative legislation simply

reserved to themselves a share of legislative power, but they did not intend to establish a

trump card over the republican form of the government. The government is still divided

into the legislative, executive, and judicial branches, the duties of which are discharged

by representatives selected by the People. Laws proposed and enacted by the People

under the initiative clause of the constitution are subject to the same constitutional

limitations as other statutes and may be amended or repealed by the General Assembly at

will. Sections 393.1030 and 393.1050 should both be given the legal effect required by

the Missouri Constitution, and the Commission's order, which did just that, should be

affirmed.

___________________________
Zel M. Fischer, Judge

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