Missourians to Protect the Initiative Process v. Blunt

RENDLEN, Judge,

dissenting.

For the reasons following, I respectfully dissent.

Missouri, among the many states with provisions for the initiative and referendum, affords its citizens the opportunity by direct vote to enact or repeal constitutional provisions. Here, as in a majority of states enjoying a system of popular legislation, constitutional amendments may reach the ballot without wending a course through the legislature. This populist system personifies the concept that the power to govern resides ultimately in the people; the citizen is sovereign. It is precisely described as a “power” reserved in the people, not a “right” granted them, see Mo. Const. art. III, § 491, one to be jealously guarded by the courts. Memorialized in the preamble to the United States Constitution by the phrase, “We, the people,” this principle is eloquently enunciated in the opening provision of our Constitution, art. I, § 1:

That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only and is instituted solely for the good of the whole.

(Emphasis added). These sovereign people, the very source of government, are empowered by art. I, § 3, with:

[i ]he inherent, sole and exclusive right to regulate the internal government and police thereof and to alter and abolish their Constitution and form of government whenever they deem it necessary, to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.

(Emphasis added).

In United Labor Committee of Mo. v. Kirkpatrick, 572 S.W.2d 449, 454 (Mo. banc 1978), the Court stated that prior decisions “have discussed the importance of the initiative and referendum, emphasizing that procedures designed to effectuate these democratic concepts should be liberally construed to avail the voters with every opportunity to exercise these rights.” The Court went further: “The ability of the voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities,” id. at 454, and concluded “the initiative process is too akin to our basic democratic ideals to have this process made unduly burdensome.” The initiative power prescribed in the Constitution has been broadly construed and “is not laden with detail.” Id. Statutes implementing the initiative are not allowed to “limit or restrict the rights conferred by the constitutional provision,” State ex rel. Elsas v. Missouri Workmen’s Compensation Commission, 318 Mo. 1004, 2 S.W.2d 796, 801 (Mo. banc 1928), and “[i]n a contest between the two, if the statute restricts a right conferred by the Constitution, the latter prevails ...” State ex rel. Randolph County v. Walden, 357 Mo. 167, 206 S.W.2d 979, 986 (Mo. banc 1947) (emphasis in original).

Typically, those arrayed against free exercise of the right of popular legislation are entrenched forces in the public or private sectors who sense their domains may be invaded or operations threatened by the initiative. In this connection, it has been aptly stated:

A lawsuit to strike an initiative or referendum from a ballot is one of the deadliest weapons in the arsenal pf the measure’s political opponents. With increasing frequency, opponents of ballot proposals are finding the weapon irresistible and are suing to stop elections.

*834Pre-election Judicial Review of Initiatives and Referendums, 64 Notre Dame Law Review 298 (1989). The author persuasively opines “it is generally improper for courts to adjudicate pre-election challenges to a measure’s substantive validity,” because:

[s]uch pre-election review involves issuing an advisory opinion, violates ripeness requirements, undermines the policy of avoiding unnecessary constitutional questions, and constitutes unwarranted judicial interference with a legislative process.

Id. at 298.

The suit at bar is such a pre-election challenge designed to keep the proposal for amending Article III (the legislative article) from the ballot. The erroneous result reached by the trial court and affirmed by the majority constitutes unfortunate judicial interference with the popular legislative process and most certainly undermines the policy of avoiding unnecessary constitutional questions.

Plaintiffs, opponents of the initiative, brought suit in the Circuit Court of Cole County2 pursuant to the provisions of § 116.200, RSMo 1986,3 within ten days following the Secretary of State’s certification under § 116.150.

The first step for an initiative occurs when proponents submit a sample petition containing the proposal “to the Secretary of State in the form in which it will be circulated.” § 116.332.1 (emphasis added). The Secretary refers the sample “to the Attorney General for his approval,” id., and of importance here, those officers:

must each review the petition for sufficiency as to form and approve or reject the form of the petition.

§ 116.332.1 (emphasis added). If approved by the Attorney General as to form, the Secretary makes “a final decision as to the approval ... of the form of the petition.” Section 116.332.2 (emphasis added). In § 116.334, the requirement that the Attorney General shall examine the petition as to form is reiterated and, when so approved, the Secretary submits a proposed “petition title” of 100 words or less (this later serves as the “ballot title”) to the Attorney General for approval as to legal content and form. The phrase “legal content” of this provision requires that the title concisely refer to and fairly state the items included in the general subject of the petition.

In the case at bar, the prescribed steps were followed and, after signatures were gathered, the petitions were presented to the Secretary of State for his examination to determine whether they complied with “the Constitution of Missouri and with this chapter.” § 116.120. At this stage, he was required to verify signatures through a demanding process described in § 116.130 and strike those determined invalid under § 116.140.4 Completing this process, the Secretary declared the results of his determination by issuing:

a certificate setting forth by congressional district the number of the valid voter signatures and stating whether the petition contains a sufficient number of valid signatures to comply with the Constitution of Missouri and with this chapter (emphasis added). Section 116.-150.1.

His certificate could issue “only for a petition approved pursuant to § 116.332.” See § 116.150.2.

*835The recurring theme is examination and approval of the form of the petition, coupled with a meticulous investigation of signatures to ensure that the number of voter signatures required by the Constitution from the minimum number of congressional districts required by the Constitution have been met. Quite simply, the reference to the “Constitution of Missouri” appearing in §§ 116.120 and 116.150 is necessary to direct the reader to the Constitution, which specifies the number of signatures required for a valid petition (eight percent of the legal voters in each of two-thirds of the congressional districts, art. Ill, § 50). These are the findings and conclusions certified under § 116.150 that may be challenged by suit brought within ten days in the Circuit Court of Cole County. This streamlined procedure requires that suits seeking reversal of the certification be “advanced” on the court’s docket and “decided by the court as quickly as possible.” § 116.200.1. This expeditious, pre-election proceeding is specially tailored for challenging those matters certified by the Secretary under § 116.150 and, in this instance, the number of valid signatures sufficient to satisfy the Constitution was not contested, hence, as to that issue, the Secretary’s determination became final. However, straying afield, the trial court undertook to consider not those matters certified under § 116.150, but erroneously threw open the proceeding to include perceived substantive defects of the initiative that were neither determined nor certified by the Secretary of State. I submit such issues are beyond the scope of this statutory action.

By unduly broadening the language of §§ 116.120 and 116.150, the majority in its per curiam opinion maintains the Secretary of State is intended to do more than certify that there were a sufficient number of valid signatures from the required number of congressional districts. As the majority puts it, “if the legislature had only intended that the Secretary of State count signatures it could have so stated (emphasis supplied).” This misses the mark, for there is nothing in Chapter 116 indicating that under § 116.120 or § 116.150 the Secretary shall certify other than the validity of and the numbers of the signatures by congressional districts. In this regard, I would suggest that if the legislature had intended that the Secretary of State under § 116.120 or § 116.150 certify to more than the number of valid signatures by congressional districts “it could have so stated.” Are we not bound to read the language of this unambiguous statute according to its plain words and from those words determine its meaning? Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29 (Mo. banc 1988). Did not the legislature mean what it said in § 116.150 that the Secretary shall certify and state:

whether the petition contains a sufficient number of valid signatures to comply with the Constitution and with this chapter?

Unfortunately, it appears the majority is determined to speculate on what the legislature might have said rather than what it did say. When the language is clear, we are not permitted the luxury of casting our spin to find what might have been intended. It should be noted the majority in its truncated discussion of § 116.120 is conspicuously silent as to the correlation of §§ 116.130, 116.140, 116.150, 116.332 and 116.334, which, when read in toto, reinforce the conclusion that reference in §§ 116.120 and 116.150 to the Constitution necessarily directs the reader to that document to learn the required number of signatures from the specified number of congressional districts, for it is in that document those requirements appear. The enumerated sections of Chapter 116 are in pari materia; accordingly, pre-election challenges to the Secretary of State’s certification under this chapter should be confined to the summary proceeding delineated therein.

Because the circuit court erroneously extended the range of this special statutory proceeding, I submit the judgment should be reversed.

This, however, is not to say opponents of an initiative are limited only to proceedings under § 116.200. In Buchanan v. Kirkpatrick, 615 S.W.2d 6 (Mo. banc 1981), this *836Court entertained an appeal from the Circuit Court of Cole County in which the trial court had refused to enjoin the Secretary of State from placing the proposed amendment No. 5 (Hancock Amendment — a broad and complicated amendment changing many parts and adding many new sections to Article X) on the November, 1980, election ballot. Two previous suits had been filed. The first stemmed from the Secretary of State’s certification that the number of signatures was inadequate. The proponents immediately brought mandamus to require him to replace signatures he had stricken from the Sixth Congressional District petitions. This Court entertained an original proceeding in mandamus, and on September 19, 1980, in Missouri Farm Bureau Federation v. Kirkpatrick, 603 S.W.2d 947 (Mo. banc 1980), ordered replacement of the signatures. From this, we learn that resort to an extraordinary legal remedy filed originally in this Court is available to litigants in initiative proceedings.

Within the week, on September 24, a second suit was brought in this Court again seeking mandamus, this time by the opponents, State ex rel. Buchanan v. Kirkpatrick (# 62514), but in that instance the petition was denied by order “without prejudice to subsequent litigation of issues not mooted by the election.” Implicit in that order was the suggestion that other actions might be utilized to raise other issues. Responding to that suggestion, the opponents on October 1 (more than a month before the election), filed still another action, Buchanan, 615 S.W.2d 6, this time seeking an injunction in the Circuit Court of Cole County to restrain the Secretary from placing the proposed amendment on the ballot. When denied eight days later, the cause came here on appeal October 17, and on October 20 appellants sought an expedited hearing. Appellants’ objections to the substantive content of the proposed amendment included the question of whether the amendment encompassed more than one subject, and in oral argument equal protection and due process challenges were raised. The Court, noting these substantive questions, refused to consider them before the election and the “Hancock Amendment” was submitted to and approved by the voters. The cause was held in abeyance until January 29, 1981, and on that day arguments were heard, followed by the Court’s opinion April 3, 1981. This stands sharply in contrast against the process employed in the case sub judice, where not only procedural issues but substantive challenges were considered and ruled immediately before the election.

The precedent established by Buchanan for determining substantive issues in the period of relative calm following elections is without question the preferable course. While there is authority for pre-election consideration of substantive issues, Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657 (banc 1942), decided long before the enactment of Chapter 116, experience demonstrates that addressing substantive challenges in post-election proceedings provides a more appropriate environment, one allowing room for deliberation, which avoids the time-pressured constraints of the final days before election.5 If we had but followed the precedent of Buchanan, 615 S.W.2d 6, the Court in a less harried, post-election setting could more deliberately have explored the substantive issues I now address.

The majority identifies the dispositive question as “whether the initiative proposal contains more than one subject and matters related thereto” and references Article III, § 50 and Article XII, § 2(b).6 Though the *837qualifying language “shall not contain more than one subject and matters properly connected therewith” of those sections is grammatically connected to its antecedent phrase “one new article” and modifies only its antecedent, and though the earlier phrase “one amended and revised article” is separated by both the comma and the disjunctive “or” and is not so modified or limited; nevertheless, for the purpose here I assume arguendo the limitation is intended to apply to this proposal for amendment of an existing article.

In Buchanan, supra, the Court searched for a central theme that could justify approving the Hancock Amendment under the “one subject” requirement of Article III, § 50. In its search, the Court found what it considered a thread running through the many-faceted initiative proposal. It declared the “central purpose” was “to limit taxes” but conceded the amendment contained an additional subject, i.e., “to limit spending.” Taxing is manifestly different from spending, but the common purpose proclaimed by the Court was putting a “lid” on each. This lid applied to taxing and spending practices of state government and for local governments. Assigning this as the central purpose, the Court justified the separate subjects in the proposal as necessary “to accomplish the central purpose,” id. at 13, and described them as subjects properly “connected with the central or primary purpose of the amendment to control taxes and expenditures.” Id. at 14.

Hancock arguably contained more than six subjects: (1) Taxation lid (§§ 16,17 and 18) on state government; (2) Spending lid (§§ 18, 19 and 20) on state government; (3) Controls on the manner in which funds may be spent by state government; (4) Prohibitions against shifting the burden of government cost to the counties or other political subdivisions; (5) Taxation lid (§ 22) on local government; (6) Limitation on local governments (§ 22) in obtaining revenues based upon assessments and property; and (7) a novel grant of original jurisdiction to the Supreme Court, amending Article V, §§ 3 and 4 of the Missouri Constitution. Mingled among those subjects was a bizarre method for repayment of all revenues collected in excess of the constitutionally established limit to a select group of taxpayers.

I submit that the instant proposal for amending Article III contains a central purpose as readily discernible as that of the Hancock Amendment to Article X. Inasmuch as the Court in Buchanan found a central purpose for Hancock, assuredly such purpose can be found in this proposal. Judicial responsibility requires that the central purpose be identified, if reasonably possible, and then be properly and fairly articulated. It is in the light of such articulation that the Court determines if the parts are “properly connected” with that purpose.

This initiative is limited to the amendment of a single constitutional article. The opening words of the ballot title are, “Shall Article III of the Constitution of Missouri be amended_”, i.e., the article establishing the “Legislative Department.” The central theme of the proposal is modification and regulation of the legislative function. Article III designs the framework, size and composition of the Legislative Department. Its broad provisions encompass legislative proceedings, limitations on legislative power, standards of conduct for legislators, initiative and referendum, and a myriad of items related to the legislative function. An amendment of all or any part of Article III crafted to modify and *838regulate the legislative function is an appropriate subject for an initiative. Each of the amended sections, as well as the new provisions, are intimately tied to the modification and regulation of the legislative function by restricting the legislature, its activities and manner of operation. Whether the proposal would improve the legislative function should be a judgment left to the voters.

Referring to the proposed amendment by its section'numbers, Section 2 reduces the size of the legislature and provides the machinery for so doing. Section 9 relates to the part played by the legislative process in declarations of candidacy for public office. The legislature is limited in its authority for setting dates for such filings, which necessarily impact filings by candidates for the House or Senate as well as for other state officials. It cannot seriously be suggested that such limitation on legislative authority should be in other than Article III, or that it is not properly connected with the initiative’s central purpose. The same must be said of the following: Section 16 relating to legislators’ compensation, and the process for audit of legislative salaries and per diem; Sections 20 and 20(a) relating to the time for commencement and adjournment of legislative sessions, plus deadlines for bills within the legislative time table; Section 21 relating to the style of bills and similar matters; Section 22 which has to do with the internal method of referring bills by committee, membership of committees and conduct of business within the Houses; Section 23 containing the “one subject” requirement for bills plus related requirements concerning the appropriation process; and Section 25 placing time limits for introduction of bills and special provisions regarding appropriation bills. Section 54 relates to the conduct of those involved in the legislative process, a matter intimately connected with modification and regulation of the legislative function. This section not only regulates such conduct, but establishes an ethics commission to monitor this activity. Among other duties, the commission has rule-making power and authority to recommend legislation to the General Assembly, including' recommendations for a code of ethics, promulgation of rules regulating lobbyists and the power to suspend violators. Under Section 54.5(5), the commission is empowered to require members of the General Assembly and other state officials to make financial disclosures. To carry out its functions, the commission is authorized to investigate and seek civil enforcement of its rules and report evidence of certain criminal activity.

Section 55 adds special ethical restrictions applicable to legislators and other state officials, pertaining to conflict of interest and improper financial dealings.

These matters are not merely “properly connected,” but are crucial to and vitally connected with the central purpose of the initiative proposal. However, the majority concludes that because several of the constraints placed on legislators are also applicable to “members of the executive branch” or other public officials and lobbyists, the proposal must fail. I submit that regulation of legislators and others outside the legislative department is proper because such regulation is tied to their connection with the legislative function. Not only legislators but other public officials and lobbyists are closely involved and vitally affect that function; all so involved should be subject to control and accountable for their actions. The majority also suggests references to the “members of the executive branch” should be only included in a proposal for an amendment of Article IV and sanctions against misconduct of “public officials” limited to amendments of Article VII. It concludes, “the organization of the Constitution creates a presumption that matters pertaining to separate subjects therein described should be set forth in the article applicable to that subject and not commingled under unrelated headings.” Maj. Opinion 831. The majority apparently has overlooked the fact that provisions regulating activities of the “executive branch” are found in Article III when those activities are intimately involved with the legislative function, e.g., Article III, § 12, which prohibits any person holding any lucrative office (members *839of the executive branch) or employment by the state (governmental employees in the executive or judicial branches) from becoming a legislator. Similarly, Article III, § 31, prescribes certain duties of the Governor when those duties are connected with the legislative process. However, if the scattered references in this proposal pointing to “members of the executive branch,” state officials other than legislators and to lobbyists are beyond the central purpose and not matters properly connected therewith, such scattered references are readily severable.

In Buchanan, 615 S.W.2d 6, the Hancock Amendment, adding tax and spending lids to state and local governments in Article X, contained a novel grant of original jurisdiction to the Supreme Court, thus amending Article V, §§ 3 and 4. Confronted with that offending thorn protruding from the side of Hancock, the Court concluded the unacceptable provision was severable, stating:

The provision purporting to place jurisdiction of such suits in this Court is not essential to the efficacy of the amendment. If eliminated, the remainder is still complete in itself and sufficient to accomplish the purpose for which it was adopted. It is not a provision without which the voters would not have adopted the amendment and without which the amendment would be incomplete and unworkable. (Citations omitted.) In short, the provision, which is ineffectual with respect to suits being filed in this Court for the reasons earlier stated is severa-ble.
See State ex rel. State Highway Commission v. Thompson, 323 Mo. 742, 751; 19 S.W.2d 642, 645 (banc 1929).

Id. at 13 n. 8.

Here, shorn of the references to “executive branch and officials other than legislators,” the proposal is complete and workable; the structure remains intact. The “severability” doctrine invoked in Buchanan regarding constitutional proposals can be found codified in § 1.140, RSMo 1986, as to statutory enactments. It provides:

If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon the void provision that it cannot be presumed that the legislature would have enacted the valid provision without the void one, or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

This Court has declared in Boone County v. State of Missouri, 631 S.W.2d 321, 324 (Mo. banc 1982), that rules applicable to constitutional construction are essentially the same as those applied to statutory construction except that the former are to be given a broader construction. Hence, this proposal for a constitutional amendment should receive at least the same genial treatment as that afforded legislative enactments. If the people had been afforded the opportunity of voting on the proposal and it had been adopted, it would have been entitled to the same consideration as the proposals considered in Buchanan and Boone County.

A separate subsection, 56.1, provides for the automatic appropriation of at least $240,000 to fund the ethics commission’s operations. This subsection stands athwart § 51, Article III, which provides, “the initiative shall not be used for the appropriation of money other than new revenues created and provided thereby ...” Though the purpose of this is obvious, regardless of how salutary or obvious the purpose, this is a matter beyond the permitted range of § 51, Article III, and should be severed. Such severance could not conceivably affect the proposal’s efficacy.

I would reverse the judgment of the trial court and would have permitted submission of the proposal to a vote of the people.

. All constitutional references are to the Mo. Constitution of 1945 and amendments unless otherwise indicated.

.The appeal from the circuit court, originally filed here, was transferred to the Court of Appeals, Western District, as the cause fell beyond the ambit of the Supreme Court’s original appellate jurisdiction. Mo. Const., art. V, § 3. However, the court of appeals immediately requested under the provision of Article V, § 10, that this Court take the case on retransfer, which was done in the shortest possible time and the case was set and argument heard October 22, 1990.

. All statutory references are to RSMo 1986 unless otherwise indicated.

. A person submitting the petition may bring an action in the circuit court of Cole County to compel the Secretary of State to show cause why names were stricken. See United Labor Committee of Mo. v. Kirkpatrick, 572 S.W.2d 449 (Mo. banc 1978), where such a suit was brought under § 126.071, RSMo Supp.1975, the predecessor to current § 116.200.

. Festinatio justitiae est noverca infortunii.

. The Constitution, Article III, § 50 (see also Article XII, § 2(b)) provides initiative:

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 (emphasis added).

The comma has been recently added before the disjunctive or and the clauses separated by the disjunctive are discrete. However, the majority has construed the provision to conform to its interpretation of the meaning and, in effect, would add thirteen words which are shown *837parenthetically and emphasized in the following version of § SO:

Petitions for constitutional amendments shall not contain more than one amended and revised article of this Constitution (WHICH SHALL NOT CONTAIN MORE THAN ONE SUBJECT AND MATTERS PROPERLY CONNECTED THEREWITH), or one new article which shall not contain more than one subject and matters properly connected therewith.

If § 50 were as the majority contends, it could have been drafted in this form:

Petitions for constitutional amendments shall not contain more than one amended and revised article of this Constitution, or one new article and neither shall contain more than one subject and matters properly connected therewith.