Brown v. Missouri Secretary of State

ZEL M. FISCHER, Judge.

I concur with the principal opinion and would allow the ballot initiatives to be placed on the ballot. In my view, the secretary of state’s summary and the auditor’s fiscal note and fiscal note summaries are fair and sufficient as these terms have been defined by prior case decisions. “Fair” and “sufficient” have been defined in a manner that gives discretion to these elected officials, and elections have consequences.

“When courts are called upon to intervene in the initiative process, they 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.” Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). “Judicial intervention is not an appropriate substitute for the give and take of the political process.” State ex rel. *670Humane Soc’y of Mo. v. Beetem, 317 S.W.3d 669, 674 (Mo.App.2010).

I agree with the auditor that the fiscal impact of proposed statutory and constitutional provisions is an important consideration for voters in deciding to vote for or against a proposed measure. However, in my view, section 116.1751 is an unconstitutional expansion of the auditor’s duties in contravention of the express limitations placed on the auditor by article IV, section 13, of the Missouri Constitution. This view is based on the plain language of article IV, section 13, and the historical context in which it was adopted. Additionally, fiscal note summaries are not required or, for that matter, even implied by article III, sections 492 and 503 of the Missouri Constitution. Therefore, I would not include the auditor’s fiscal note summaries on the ballot titles with the proposed initiatives.

Standard of Review

This Court reviews the constitutional validity of a statute de novo. Gurley v. Mo. Bd. of Private Investigator Exam’rs, 361 S.W.3d 406, 411 (Mo. banc 2012). “A statute is presumed valid and will not be held unconstitutional unless it clearly contravenes a constitutional provision.” In re Brasch, 332 S.W.3d 115, 119 (Mo. banc 2011). “The person challenging the statute’s validity bears the burden of proving the act clearly and undoubtedly violates the constitution.” Kansas City Premier Apartments, Inc. v. Mo. Real Estate Comm’n, 344 S.W.3d 160, 167 (Mo. banc 2011) (quoting Brasch, 332 S.W.3d at 119). “But, if all or part of a statute does conflict with a constitutional provision or provisions, this Court must hold the conflicting portions invalid.” Farmer v. Kinder, 89 S.W.3d 447, 452 (Mo. banc 2002).

“While a court will read a constitutional provision broadly, it cannot ascribe to it a meaning that is contrary to that clearly intended by the drafters.” Id. “Rather, a court must undertake to ascribe to the words of a constitutional provision the meaning that the people understood them to have when the provision was adopted.” Id. “The meaning conveyed to the voters is presumptively the ordinary and usual meaning given the words of the provision.” Id. “Of particular importance is the principle that in determining [the] meaning of a constitutional provision due regard will be given to [its] primary objects and all related provisions should be construed as a *671whole and where necessary to bring conflicts, if any, into harmony.” State, at Info. of Martin v. City of Independence, 518 S.W.2d 63, 66 (Mo.1974). “A court may not add words by implication when the plain language is clear and unambiguous.” Wright-Jones v. Nasheed, 368 S.W.3d 157, 159 (Mo. banc 2012).

Analysis

Article IV, section 13, of the Missouri Constitution provides:

The state auditor shall have the same qualifications as the governor. He [or she] shall establish appropriate systems of accounting for all public officials of the state, post-audit the accounts of all state agencies and audit the treasury at least once annually. He [or she] shall make all other audits and investigations required by law, and shall make an annual report to the governor and general assembly. He [or she] shall establish appropriate systems of accounting for the political subdivisions of the state, supervise their budgeting systems, and audit their accounts as provided by law. No duty shall be imposed on him [or her] by law which is not related to the supervising and auditing of the receipt and expenditure of public funds.

(Emphasis added). This limiting provision reaffirms that the people, in adopting the 1945 Constitution, placed express limitations of authority .on certain statewide elected officials, including the auditor, because, under the 1875 Constitution, the legislature had expanded government by giving elected officials new functions and duties to build up their power by patronage. This Court has previously addressed the purpose of these limiting provisions included in the 1945 Missouri Constitution.

Just as article IV, section 15 sets limits on the power of the treasurer, so article IV, section 13 provides: “[N]o duty shall be imposed on [the state auditor] by law which is not related to the supervising and auditing of the receipt and expenditure of public funds.” Article IV, section 14 similarly provides “no duty shall be imposed on [the secretary of state] by law which is not related to his duties as prescribed in this constitution.” There were no similar limitations in the 1875 Constitution, and this Court has previously recognized that it was to correct this situation that these limiting provisions were added to the 1945 constitution, for:
the background of the 1945 provision lies in the prior history of a building up of the power and patronage of elected officials by giving to them new functions and duties. One purpose of the new constitution was to limit and define the scope and duties of all executive officials (see § 12, Art. 4,) agencies, and departments, including elected officials.
Petition of Board of Public Buildings, 363 S.W.2d 598, 608 (Mo. banc 1962).
Indeed, the 1944 debates over the 1945 constitution themselves show that the delegates to the constitutional convention drafted it with an eye towards their concern that power had been too widely distributed among a variety of elected officials under the 1875 constitution and that a focusing of more executive power in the office of the governor and his or her appointees might lead to more effective government. One way the 1945 constitution sought to accomplish this goal was by precluding the expansion of the state treasurer’s role beyond that of custodian of state funds and by similarly limiting the power of the state auditor and secretary of state. See DEBATES, MISSOURI CONSTITUTIONAL CONVENTION 1945, vol. 13, 4127-4135; vol. 14, 4171-4173.

*672Farmer v. Kinder, 89 S.W.3d 447, 453-54 (Mo. banc 2002).

As the principal opinion correctly points out, the auditor’s authority to prepare fiscal notes and fiscal note summaries for “proposed measures” was enacted by the legislature after this Court’s decision in Thompson v. Comm, on Legislative Research, 932 S.W.2d 392, 395 (Mo. banc 1996), held that “section 116.170.2, RSMo 1994 violated the constitution” because “the legislature had no power to adopt a statute” that “increased the duties of the committee beyond those expressly authorized by” the Missouri Constitution. Op. at 648. In my view, the same analysis would apply to the auditor, and the legislature had no power to enact a statute that increased the duties of the auditor beyond those expressly authorized by the Missouri Constitution.

The principal opinion seeks to define the auditor’s process in preparing the fiscal note and fiscal note summary as an “investigation” under article IV, section 13, and that “[tjhere is a relationship between the auditor’s preparation of the fiscal notes and fiscal note summaries and the ‘supervising ... of the receipt and expenditure of public funds.’ ” op. at 652. I disagree with this expansive interpretation because the solicitation and recitation of potential costs and benefits of petition initiatives that are merely hypothetical in nature at the time they are submitted to the auditor for the preparation of fiscal notes and fiscal note summaries do not “relate” to “su~ pervisfion] ... of the receipt and expenditure of public funds.”

To “supervise” means “to look over in order to read ... to coordinate, direct, and inspect continuously and at first hand the accomplishment of: oversee with the powers of direction and decision the implementation of one’s own or another’s intentions!!.]” Webster’s Third New Int’l Dictionary Unabridged 2296 (1976). “Receive” means “to take possession or delivery of ... to take in: act as a receptacle or container for.... ” Id. at 1894. “Receipt” means “the act or process of receiving. ...” Id. “Expend” means “to pay out or distribute ... to consume by use: use up.... ” Id. at 799. “Expenditure” means “the act or process of expending....” Id. at 800. The statutory requirement directing the auditor’s office to solicit information to provide a fiscal note and fiscal note summary pursuant to § 116.175, RSMo Supp.2011, does not relate to the “act or process,” “with powers of direction and decision,” either the auditor’s taking “possession or delivery of’ or “pay[ing] out or distributing]” public funds.

In the case of Brown v. Carnahan, et al., the circuit court below reasoned:

It is undisputed that the preparation of the fiscal note and fiscal note summary involves estimating costs and savings for a proposed measure, not a review of monies received and spent. Estimating by its very nature is forecasting what might happen, not what has happened. The plain language of the constitution contemplates that whatever duty the state auditor is given, it must be related to the receipt and expenditure of public funds. Estimated costs or savings have neither been expended nor realized. One can neither supervise nor audit funds which have not been received or expended because at that point, there is nothing to look at. The State Auditor argues that being “related to” infers some sort of logical connection between the preparation of the fiscal note and the supervising and auditing of the receipt and expenditure of public funds.
This Court declines to find such logical connection simply because the discussion relates to public funds. The del*673egation to the State Auditor of the duty to prepare a fiscal note and summary provided by § 116.175, RSMo, violates the limitations of Article IV, § 13 of the Missouri Constitution and those provisions are found to be unconstitutional.

The mere fact that the auditor’s preparation of a fiscal note and fiscal note summary is tangentially related to “public funds” does not escape the limiting provision of article IV, section 13, requiring that such a duty be “related to the supervising ... of the receipt and expenditure of public funds.” While the principal opinion rationalizes that the auditor’s power to conduct investigations as required by law is silent with respect to time restrictions, the plain and ordinary meaning of the words of the limiting provision in article IV, section 13, indicate a requirement that the auditor’s duties relate to the “act or process of’ receiving or expending public funds. Such an “act or process” is expressly a concurrent one. The preparation of a fiscal note and fiscal note summary, for inclusion in a ballot initiative petition, does not relate to the “act or process” of receiving or expending public funds. The limiting provisions were added in 1945 specifically to the offices of the treasurer, the auditor, and the secretary of state to eliminate precisely this kind of additional legislative directive from the General Assembly to an office of the executive branch. Farmer, 89 S.W.3d at 454. “The language of this clause is susceptible to a clear and unambiguous interpretation based only on the plain and ordinary meaning of the words.” Wrighb-Jones, 368 S.W.3d 157, 159. “A court may not add words by implication when the plain language is clear and unambiguous.” Id.

The initiative referendum is a powerful tool of direct democracy. “In fact, the initiative allows the public to bypass their elected representatives and reserves direct lawmaking power with the voters of the state!”4 “The initiative is a tool for everyday, ordinary citizens to ‘override legislatures held in [the] thrall of wealthy patrons.”5 Initiative and referendum make it possible for the people, by direct vote, to repeal “bad laws” or enact beneficial measures that their representatives refuse to consider.6

Nothing in article III, sections 49 and 50, requires the inclusion of a fiscal note or fiscal note summary in an initiative petition proposing laws or amendments to the constitution. Furthermore, the initiative process is a form of direct democracy that presumes the supporters for or against the ballot measure, who will rigorously campaign to support or defeat it, are left with the responsibility to advise the voters of its potential fiscal impact.

Conclusion

Because I would find that § 116.175 imposes duties on the state auditor that are not related to “supervising ... the receipt and expenditure of public funds,” in contravention of article IV, section 13,1 would not include the auditor’s fiscal note summaries in the official ballot titles for the proposed initiatives at issue in this case. However, I would allow the initiative petitions to be placed on the ballot without *674fiscal note summaries. In all other respects, I concur with the principal opinion.

. All references to § 116.175 are to RSMo Supp.2011.

. Mo. Const, art. Ill, sec. 49, provides:

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.

. Mo. Const, art. Ill, sec. 50, provides:

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, and the enacting clause thereof shall be "Be it resolved by the people of the state of Missouri that the Constitution be amended:”. Petitions for laws shall contain not more than one subject which shall be expressed clearly in the title, and the enacting clause thereof shall be “Be it enacted by the people of the state of Missouri:”.

. Heather A. Paramo, Missouri's Silenced Citizen Legislators: How the Initiative Denied to Citizens in Fourth-Class Missouri Municipalities, 44 St. Louis U. L.J. 1081, 1083-84 (1997).

. Id. at 1087.

. David L. Callies, Nancy C. Neuffer, and Carlito P. Caliboso, Ballot Box Zoning: Initiative, Referendum and the Law, 39 Wash. U.J. Urb. & Contemp. L. 53, 58 (1991).