Earth Island Institute v. Union Electric Co.

Zel M. Fischer, Judge,

dissenting.

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 [GJeneral [Assembly 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. Ill, § 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.

*38The General Assembly enacted S.B. 1181, § 1, 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 mandated solar renewable 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 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.” Op. at 29-30.

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 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.” Op. at 30, 33. 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, § 1, but: “ ‘Repeal by implication is disfavored, and if two statutes can be reconciled then both should be given effect.’ ” Crawford v. Div. of Emp’t. 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 660, 667 (Mo. banc 2010) (internal quotation marks and citations omitted). *39This 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, “reserving] 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).

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 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. Const. art. III, § 52(b); 82 C.J.S. Statutes §§ 147, 180; see also State ex rel. Halliburton v. Roach, 230 Mo. 408, 130 S.W. 689, 693-94 (banc 1910).

*40The debates of the constitutional convention of 1945 support this principle. See Debates of the Missouri Constitution 1945, vol. II at 399-400, 441-43, 524-28 (Steno-type Studios of St. Louis). 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 Debate, 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 orí 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 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 statute no longer would have existed. See id. at *41232; 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, 32 Ariz. 515, 260 P. 435, 437-38 (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, 74 Ariz. 269, 247 P.2d 617, 621 (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. Op. at 33. 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:

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 initiated 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 *42impliedly, 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 the General Assembly in no manner minimizes, conflicts with, or prohibits the General Assembly frpm 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 enactment by 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 Refot-m 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 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. VII. Others impose a supermajority vote for a specified waiting period (e.g., Washington) or bar repeals but allow amendments furthering the initiative’s purpose if there is a super-majority 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 *43initiative while it is pending. This new rule of statutory interpretation has no foundation in the text of the Missouri Constitution.

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 sfatutes 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.

. Statutory citations are to RSMo Supp. 2013.

. 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.

. The principal opinion tacitly recognizes the General Assembly could reenact the provisions of § 393.1050.

. " '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 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.

. The enacting clause states, "Be it enacted by the people of the state of Missouri.” Mo. Const, art. Ill, § 50; Mo. Const, of 1875, art. IV, § 57 (1908).

. 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.

. 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).