Missouri Electric Cooperatives, D/B/A Association of Missouri Electric Cooperatives v. Missouri Secretary of State Jason Kander and Returning Government To The People and Todd S. Jones

In the Missouri Court of Appeals Western District MISSOURI ELECTRIC ) COOPERATIVES, D/B/A ) ASSOCIATION OF MISSOURI ) WD80007 ELECTRIC COOPERATIVES, ET ) AL., ) OPINION FILED: ) September 13, 2016 Appellants, ) ) v. ) ) MISSOURI SECRETARY OF STATE ) JASON KANDER AND RETURNING ) GOVERNMENT TO THE PEOPLE ) AND TODD S. JONES, ) ) Respondents. )

Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce, Judge

Before Special Division: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Anthony Rex Gabbert, Judge

Challengers to an initiative petition, who claim the Secretary of State's certification of the petition for inclusion on the ballot should be reversed pursuant to section 116.200.1 because the initiative violates the First Amendment, the Equal Protection Clause, and the Privileges and Immunities Clause, appeal from a trial court judgment denying their pre-*2 election claims because they are not ripe for adjudication. Because the constitutional challenges are not ripe for pre-election judicial review, the trial court's judgment is affirmed.

Factual and Procedural Background 1

On December 2, 2014, Todd Jones ("Mr. Jones") submitted to Secretary of State Jason Kander ("Secretary of State") an initiative petition sample sheet proposing to amend article VIII of the Missouri Constitution by adding section 23 ("Proposed Measure"). Mr. Jones is the Deputy Treasurer of Returning Government to the People, a campaign committee organized under the laws of the State of Missouri for the purpose of advocating for the passage of the Proposed Measure. On January 13, 2015, the Secretary of State certified the official ballot title for the Proposed Measure. The official ballot title provides:

Shall the Missouri Constitution be amended to:

• • establish limits on campaign contributions by individuals or entities to political parties, political committees, or committees to elect candidates for state or judicial office; • prohibit individuals and entities from intentionally concealing the source of such contributions; • require corporations or labor organizations to meet certain requirements in order to make such contributions; and • provide a complaint process and penalties for any violations of this amendment?

It is estimated this proposal will increase state government costs by at least $118,000 annually and have an unknown change in costs for local government entities. Any potential impact to revenues for state and local governments is unknown.

1 The factual and procedural background is drawn largely from a joint stipulation of facts entered into between the parties in the proceedings before the trial court.

On August 9, 2016, the Secretary of State certified the Proposed Measure for inclusion on the ballot for the November 8, 2016 general election. 2 The Proposed Measure is several pages long, contains 8 sections and numerous subsections, including 18 subsections under section 23.3 alone. The full text of the Proposed Measure is attached. (Appendix 1, attached).

On August 4, 2016, a petition for declaratory judgment and injunctive relief contesting the Proposed Measure was filed in the Circuit Court of Cole County against the Secretary of State. A first amended petition ("Petition") was filed on August 9, 2016, immediately after the Proposed Measure was certified for inclusion on the ballot. The Petition was filed pursuant to section 116.120.1, which permits any citizen to seek an order compelling the Secretary of State to reverse a decision that an initiative petition is sufficient or insufficient to be certified for inclusion on the ballot. The plaintiffs named in the Petition are Missouri Electric Cooperatives, doing business as Association of Missouri Electric Cooperatives ("AMEC"), David Klindt ("Klindt"), and Legends Bank ("Legends"). AMEC, Klindt, and Legends are collectively referred to as "Plaintiffs."

AMEC is an association of 47 nonprofit cooperative systems organized pursuant to Chapter 394, RSMo. AMEC has formed and maintains a political action committee, AMEC-PAC. AMEC and its members make contributions to AMEC-PAC. AMEC-PAC makes and receives contributions to and from other political action committees. Klindt is

2 Before the Proposed Measure was certified for inclusion on the ballot, a lawsuit was filed asserting constitutional challenges to the Proposed Measure and a challenge to the ballot title pursuant to section 116.190. Reeves v. Kander, 462 S.W.3d 853, 855-56 (Mo. App. W.D. 2015). In Reeves, we held that the constitutional challenges were not ripe for adjudication because the Secretary of State had not yet certified the Proposed Measure for inclusion on the ballot. Id. at 857-59.

a Missouri citizen. Legends is a Missouri state-chartered bank organized pursuant to the provisions of Chapter 362, RSMo. Legends makes contributions to political action committees formed by members of the Missouri Bankers Association.

The Petition alleges three counts. Count I alleges that the Proposed Measure violates the Plaintiffs' rights under the First Amendment to the United States Constitution and article I, section 8 of the Missouri Constitution because:

19. Subsection 12 of Section 23.3 3 of the Proposed Measure specifically prohibits political action committees from receiving contributions from any entity other than "individuals; unions; federal political action committees; and corporations, associations and partnerships formed under chapter 347 to 360, RSMo."

....

25. Subsection 16(c) of Section 23.3 4 of the Proposed Measure prohibits campaign committees, candidate committees, continuing committees, exploratory committees, political party committees, and political parties from receiving contributions from "any foreign corporation that does not have the authority to transact business in this state pursuant to Chapter 347, RSMo."

[Petition ¶¶ 19, 25]

Plaintiffs argue that Section 23.3(12) unreasonably restricts free speech and free association in a manner that is neither reasonably related nor narrowly tailored to address

3 Section 23.3(12) provides: "Political action committees shall only receive contributions from individuals; unions; federal political action committees; and corporations, associations, and partnerships formed under chapters 347 to 360, RSMo, as amended from time to time, and shall be prohibited from receiving contributions from other political action committees, candidate committees, political party committees, campaign committees, exploratory committees, or debt service committees. However, candidate committees, political party committees, campaign committees, exploratory committees, and debt service committees shall be allowed to return contributions to a donor political action committee that is the origin of the contribution." 4 Section 23.3(16)(c) provides: "No campaign committee, candidate committee, continuing committee, exploratory committee, political party committee, and political party shall knowingly accept contributions from: . . . (c) Any foreign corporation that does not have the authority to transact business in this state pursuant to Chapter 347, RSMo, as amended from time to time."

a State interest in that it would operate to: (i) prohibit Missouri state-chartered banks formed under Chapter 362, including Legends, and state political action committees, such as AMEC-PAC, from making contributions to political action committees; (ii) prohibit the Chapter 394 members of AMEC from making contributions to AMEC-PAC; and (iii) prohibit AMEC-PAC from receiving contributions from other state political action committees. Plaintiffs argue that Section 23.3(16)(c) unreasonably restricts free speech and free association in a manner that is not reasonably related nor narrowly tailored to address a State interest in that it would operate to prohibit foreign corporations from making contributions to Missouri candidates for office or committees which might support them.

Count II alleges that the Proposed Measure violates the Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and article I, section 2 of the Missouri Constitution because there is no rational basis for Section 23.3(12) of the Proposed Measure's disparate treatment of corporations, associations and partnerships formed under Chapters 347 to 360, banks formed under Chapter 362, political action committees, and foreign corporations.

Count III alleges that the Proposed Measure violates the Privileges and Immunities Clause of article IV, section 2 of the United States Constitution because Section 23.3(16)(c) of the Proposed Measure would treat foreign business corporations differently than *6 domestic business corporations or foreign limited liability corporations 5 with no rational basis to do so.

On August 9, 2016, Returning Government to the People and Mr. Jones (collectively "Intervenors") filed a consent motion seeking to intervene as defendants. The motion was granted by the trial court on August 23, 2016.

On August 19, 2016, the Secretary of State filed his answer to the Petition, and asserted the affirmative defense that the Petition presented constitutional challenges to the Proposed Measure that are not ripe for adjudication nor justiciable, requiring the Petition to be dismissed.

On August 23, 2016, the parties submitted a joint stipulation of facts and exhibits to the trial court, and arguments were heard by the trial court. After considering pre-trial briefs submitted by the parties, the joint stipulation of facts and exhibits, the arguments of counsel, 6 and post-trial proposed judgments submitted by the parties, the trial court entered its judgment on August 25, 2016 ("Judgment"). The Judgment found in favor of the Secretary of State and Intervenors and against Plaintiffs on all counts of the Petition. The Judgment concluded that the Petition alleged substantive constitutional challenges to the Proposed Measure that are not ripe for pre-election judicial review because: (i) the Plaintiffs challenge only a small subset of the Proposed Measure's applications; (ii) the challenges raised are not challenges to the facial constitutionality of the Proposed Measure

5 The Petition alleges that foreign limited liability corporations can register under Chapter 347, RSMo, while foreign general business corporations cannot. 6 The Record on Appeal does not include a transcript of the oral arguments made to the trial court. The only transcript explains the stipulation of facts and exhibits. At the end of this transcript, the parties advised the trial court that they did not need their respective arguments on the merits to be transcribed.

so obvious as to constitute a matter of form, but are instead as-applied challenges; and (iii) the Proposed Measure contains a severability clause that would permit any provisions determined to be unconstitutional post-election to be severed. Alternatively, the Judgment made findings and conclusions that denied each of the Plaintiffs' constitutional challenges on the merits.

Plaintiffs filed an immediate appeal on August 25, 2016. Our appellate proceedings were substantially expedited to require submission of a record on appeal by September 1, 2016, the completion of briefing by September 9, 2016, and oral argument on September 12, 2016.

Standard of Review

"Because this case was submitted on stipulated facts, our standard of review is set forth in Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979)." Kuehner v. Kander, 442 S.W.3d 224, 227-28 (Mo. App. W.D. 2014) (quoting Knight v. Carnahan, 282 S.W.3d 9, 15 (Mo. App. W.D. 2009)). "Therefore, '[t]he only question before us is whether the trial court made the proper legal conclusion from the stipulated facts.'" Id. at 228 (alteration in original) (quoting Knight, 282 S.W.3d at 15). "This Court is primarily concerned with the correctness of the result, not the route taken by the trial court to reach it; the trial court's judgment will be affirmed if it is correct on any ground supported by the record, regardless of whether the trial court relied on that ground." Missouri Soybean Ass'n v. Missouri Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003).

Analysis

Plaintiffs raise two points on appeal. In their first point, Plaintiffs allege that the trial court erred in concluding that their constitutional challenges to the Proposed Measure were not ripe for review because this court held in Reeves v. Kander, 462 S.W.3d 853 (Mo. App. W.D. 2015) that the challenges would be ripe for adjudication once the Proposed Measure was certified for inclusion on the ballot. In their second point, Plaintiffs allege that the trial court erred in refusing to reverse the Secretary of State's decision that the Proposed Measure was sufficient because the Proposed Measure violates Article III, section 51 of the Missouri Constitution as well as the First Amendment and the Equal Protection Clause of the United States Constitution in that the Proposed Measure suppresses speech and is not narrowly tailored to the State's interest in prohibiting the appearance of quid pro quo corruption. 7 Because we conclude that the trial court correctly entered judgment against Plaintiffs because their constitutional challenges are not ripe for adjudication, we will not address Plaintiffs' second point on appeal.

I.

Plaintiffs' first point on appeal alleges that the trial court was bound by our decision in Reeves, where we held, according to Plaintiffs, that constitutional challenges to the Proposed Measure would be ripe for adjudication once the Proposed Measure was certified for inclusion on the ballot. Specifically, Plaintiffs allege that "this Court concluded that the precise constitutional challenges that are being made in this case would become ripe

7 Plaintiffs have abandoned the Privileges and Immunities Clause claim asserted in Count III of the Petition, at least insofar as the trial court's denial of that claim was on the merits, as no claim of error in that regard is raised in point two on appeal.

for judicial review 'following a final determination by the election authority as to whether to certify the initiative for the ballot.'" [Pls.' Br. 14-15 (quoting Reeves, 462 S.W.3d at 858)]

A.

Plaintiffs' argument distorts our holding in Reeves. The passage relied on by Plaintiffs appears in connection with Reeves's general discussion of the law with respect to pre-election review of constitutional challenges to initiative petitions. 462 S.W.3d at 857-58. Specifically, Reeves observed in general terms that "Missouri courts have reviewed [challenges that an initiative petition is facially unconstitutional] on a number of occasions—following a final determination by the election authority as to whether to certify the initiative for the ballot." Id. at 858 (emphasis in original). Reeves did not hold that the specific constitutional challenges at issue in the case before it would be ripe for adjudication once the Proposed Measure was certified for inclusion on the ballot. Reeves held only that said challenges were not ripe for adjudication because the Proposed Measure had not yet been certified for inclusion on the ballot. The limited nature of our holding in Reeves was made clear by the sentence immediately following the passage relied on by Plaintiffs, where we stated that "we are unaware of any decision in which [pre-election] review has occurred where, as here, sufficient signatures have not been collected and the Secretary [of State] has not decided whether to place the [Proposed Measure] on the ballot." Id. In short, Reeves did not pre-determine an issue that was not before it—whether *10 Plaintiffs' constitutional challenges to the Proposed Measure 8 would be ripe for adjudication once the Secretary of State certified the Proposed Measure for inclusion on the ballot.

B.

In the argument portion of the Brief addressing their first point on appeal, Plaintiffs also allege that their challenges to the Proposed Measure are "facial challenges" to the constitutionality of the Proposed Measure, and that the Missouri Supreme Court authorizes pre-election review of the facial constitutionality of an initiative petition. [Pls.' Br. 12-15] However, Plaintiffs' first point relied on does not claim trial court error because Plaintiffs' constitutional challenges involve the facial validity of the Proposed Measure. Rule 84.04(e) 9 provides that "[t]he argument shall be limited to those errors included in the 'Points Relied On.'" Where an argument is not contained in the points relied on, the argument is not preserved for appellate review. See Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 763 n.4 (Mo. banc 2010).

"Despite the mandatory nature of the requirements of Rule 84.04, this Court has discretion to review non-compliant briefs ex gratia where the argument is readily understandable." Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 177-78 (Mo. App. E.D. 2014) (citing Moreland v. Div. of Emp't Sec., 273 S.W.3d 39, 41 (Mo. App. W.D. 2008)). Plaintiffs' argument that the trial court erred in concluding that their challenges to the facial constitutionality of the Proposed Measure are not ripe for adjudication is readily

8 The Plaintiffs in this case were not parties in Reeves. 9 All references to Rules are to Missouri Court Rules, Volume I -- State, 2016 unless otherwise noted.

understandable. And it is an argument that was plainly raised in Plaintiffs' trial brief. Thus, Plaintiffs' argument is of no surprise to the Secretary of State or the Intervenors. Given the highly expedited nature of this appeal, it would serve no purpose to avoid discussion of a readily understandable claim of error by insisting on rigid compliance with Rule 84.04(e). That is particularly so as the claim that challenges to the facial constitutionality of the Proposed Measure are entitled to pre-election review could be fairly read as related to the claim expressly set forth in Plaintiffs' first point on appeal. We thus exercise our discretion to address Plaintiffs' contention that the trial court erred by concluding that Plaintiffs' constitutional challenges to the Proposed Measure were not ripe for adjudication because challenges to the facial validity of the Proposed Measure are entitled to pre-election review.

C.

The rationale for limiting pre-election review of the constitutionality of an initiative petition is explained in Brown v. Carnahan, 370 S.W.3d 637 (Mo. banc 2012):

Nothing in our constitution so closely models participatory democracy in its pure form [as the citizen initiative petition process]. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from whom all constitutional authority is derived, have reserved the "power to propose and enact or reject laws and amendments to the Constitution."

Id. at 645 (quoting Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (quoting MO. CONST., art. III, sec. 49)). "To avoid encroachment on the people's constitutional authority, courts will not sit in judgment on the wisdom or folly of the initiative proposal presented, nor will this Court issue an advisory opinion as to whether a particular proposal, if adopted, would violate a superseding law of this state or *12 the United States Constitution." Id. (emphasis added) (citing Missourians to Protect the Initiative Process, 799 S.W.2d at 827). "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." Id. (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827).

The judiciary's authority to determine pre-election challenges to initiative petition ballot measures is thus extremely limited. Brown reinforced that pre-election review can only be conducted when constitutional challenges to an initiative petition satisfy two criteria. "Before the people vote on an initiative, courts may consider only those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form." Id. (emphasis added) (quoting United Gamefowl Breeders Ass'n of Missouri v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000)). "[W]hen initiative petitions are challenged, [our] primary duty is to determine 'whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded.'" Id. (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827).

The restraint on our authority to entertain pre-election challenges means that "we will not look behind the face of the petition to determine its constitutionality prior to its being voted on by the electorate." Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984) (citing State ex rel. Dahl v. Lange, 661 S.W.2d 7, 8 (Mo. banc 1983); Moore v. Brown, 165 S.W.2d 657 (Mo. banc 1942); Pitman v. Drabelle, 183 S.W. 1055, 1057 (Mo. 1916)). We "may [only] look beyond the face of [an initiative] petition to the *13 extent necessary to determine whether constitutional and statutory requirements pertaining to the form of the petition have been satisfied." Id. (emphasis added). It is in this context, and only in this context, therefore, that we are permitted to "review allegations that an initiative is facially unconstitutional." 10 Knight, 282 S.W.3d at 21 (citing Union Elec. Co., 678 S.W.2d at 405). Even then, pre-election review will be permitted only when the constitutional violation "is so obvious as to constitute a matter of form." Id. (emphasis added).

A violation of a constitutional provision pertaining to the procedure or form of an initiative petition that is so obvious as to constitute a matter of form is afforded pre-election review because such challenges do not seek an advisory opinion regarding the

10 Knight uses the phrase "facially unconstitutional" in describing whether challenges to an initiative petition are subject to pre-election review. The phrase "facially unconstitutional," or some ideation thereof, has since been repeated by our courts in addressing the ripeness of pre-election challenges. See, e.g., Reeves, 462 S.W.3d at 857; City of Kansas City v. Chastain, 420 S.W.3d 550, 554 (Mo. banc 2014); Kuehner v. Kander, 442 S.W.3d 224, 228 (Mo. App. W.D. 2014). Knight's use of the phrase "facially unconstitutional" creates unintended and unfortunate confusion. We use this opportunity to clarify what Knight, and other courts, necessarily mean by the phrase. Knight's reference to "facial unconstitutionality" is followed by citation to the Missouri Supreme Court's decision in Union Electric Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo. banc 1984). Union Electric Co. held that "barring exceptional circumstances, we will not look behind the face of the [initiative] petition to determine its constitutionality prior to its being voted on by the electorate[,] . . . [and] the Secretary of State and the courts . . . may look beyond the face of the petition [only] to the extent necessary to determine whether constitutional and statutory requirements pertaining to the form of the [initiative] petition have been satisfied." 678 S.W.2d at 405 (emphasis added). Union Electric Co.'s reference to the "face" of an initiative petition thus provides the necessary context for construing Knight's use of the phrase "facially unconstitutional." Knight recognized as much, as it observed that "[b]efore a vote is held on a measure, the judiciary may review only 'those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form.'" 282 S.W.3d at 22 (quoting United Gamefowl Breeders, 19 S.W.3d at 139). Similarly, in State ex rel. Hazelwood Yellow Ribbon Committee v. Klos, 35 S.W.3d 457, 468 (Mo. App. E.D. 2000), the Eastern District stated that "our Supreme Court has indicated that pre-election review is permissible in cases where the measure is clearly facially unconstitutional." For this proposition, the Eastern District quotes from Missourians to Protect the Initiative Process, 799 S.W.2d at 827, where the Supreme Court did not use the phrase "facially unconstitutional," but instead held narrowly that "'[o]ur single function is to ask whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded.'" Hazelwood Yellow Ribbon Committee, 35 S.W.3d at 468. Plainly, in determining the ripeness of pre-election challenges for judicial review, the phrase "facial constitutionality" refers only to whether an initiative petition violates a constitutional or statutory requirement pertaining to its procedure and form.

constitutionality of an initiative petition, if adopted. Rather, such challenges pertain primarily to the current constitutional status of an initiative petition, as they address compliance with express "conditions precedent to placing a proposal on the ballot." Missourians to Protect the Initiative Process, 799 S.W.2d at 828. Pre-election judicial review of a constitutional challenge pertaining to the required "form" of an initiative petition is thus appropriate because "regardless of the meritorious substance of a proposition, if the prerequisites of [the Missouri Constitution pertaining to the procedure and form of an initiative petition] are not met, the proposal is not to be on the ballot." Id. (emphasis added). In other words, "a judicial opinion as to whether the constitutional requirements [for placing an initiative petition on the ballot] have been met is no longer hypothetical or advisory." Id.

Some challenges to an initiative petition are routinely deemed eligible for pre-election judicial review because they easily meet both of the criteria reiterated in Brown. One such example is where an initiative petition is claimed to violate article III, section 50 of the Missouri Constitution 11 because it contains more than one subject or amends more than one constitutional provision. Id. at 828-29 (holding that "[a]ny controversy as to whether the prerequisites of article III, section 50 have been met is ripe for judicial determination when the Secretary of State makes a decision to submit, or refuse to submit,

11 MO. CONST. art. III, sec. 50 provides, in pertinent part, that: "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." See also MO. CONST. art. XII, sec. 2(b) (providing, in pertinent part, that: "No such proposed amendment [by the general assembly or by the initiative] shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith").

an initiative to the voters"); see also Moore, 165 S.W.2d at 659-60 (entertaining pre-election challenge to constitutionality of initiative petition involving claim that measure contained more than one subject and amended constitutional provisions beyond those it purported to amend). Such challenges address a constitutional provision pertaining to the required procedure and form of an initiative petition, and by their nature allege a violation that can be readily gauged, rendering it so obvious as to be a matter of form.

Another such example is a constitutional challenge pertaining to the provision in article III, section 51 of the Missouri Constitution 12 prohibiting initiative petitions from being used for the "appropriation of money other than of new revenues created and provided for thereby." As with article III, section 50 "single-subject" and "single-amendment" challenges, a challenge alleging a violation of this provision of the Missouri Constitution involves the constitutionally required procedure or form of an initiative petition and can be readily gauged, often from the language of the initiative itself, as to be an obvious matter of form. See, e.g., Kansas City v. McGee, 269 S.W.2d 662, 664-66 (Mo. 1954). In fact, an alleged violation of the appropriations provision of article III, section 51 of the Missouri Constitution was at issue in City of Kansas City v. Chastain, 420 S.W.3d 550 (Mo. banc 2014). There, our Supreme Court held that the trial court had been authorized "to conduct pre-election review of the facial constitutionality 13 of an initiative petition" because the issue was whether the proposed ordinance was plainly "an

12 MO. CONST. art. III, sec. 51 provides that: "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." 13 See supra note 10.

unconstitutional appropriation ordinance under [a]rticle III, section 51 of the Missouri Constitution." Chastain, 420 S.W.3d at 554-55 (citing Missourians to Protect the Initiative Process, 799 S.W.2d at 828). Chastain's citation to Missourians to Protect the Initiative Process demonstrates the Supreme Court's consistency in limiting pre-election judicial review of challenges to initiative petitions to whether there are obvious violations of express constitutional or statutory "conditions precedent to placing a proposal on the ballot." Missourians to Protect the Initiative Process, 799 S.W.2d at 828. In fact, Chastain found that the "plain language of the proposed ordinance" demonstrated it was not an appropriation ordinance that violated article III, section 51 of the Missouri Constitution. 420 S.W.3d at 555.

Though violations of some constitutional provisions pertaining to the procedure or form of an initiative petition inherently involve issues so obvious as to be a matter of form, pre-election review is not assured simply because a challenge to an initiative petition alleges a violation of a constitutional provision pertaining to the procedure or form of an initiative. As previously explained, a pre-election challenge must meet two requirements: it must involve a '"threshold issue[] that affect[s] the integrity of the election itself, and [be] so clear as to constitute a matter of form.'" Brown, 370 S.W.3d at 645 (emphasis added) (quoting United Gamefowl Breeders, 19 S.W.3d at 139). This point is demonstrated by Union Electric Co., where a pre-election challenge was denied judicial review even though it alleged that an initiative petition violated article III, section 50 of the Missouri *17 Constitution 14 because "it . . . was not signed by eight percent of the legal voters in each of two-thirds of Missouri's congressional districts." 678 S.W.2d at 404. The resolution of that issue would have required the Supreme Court to determine whether the initiative petition proposed a constitutional amendment (which requires signatures by eight percent of legal voters) or a statute (which only requires signatures by five percent of legal voters). Our Supreme Court held that:

[Although] courts . . . may look beyond the face of [an initiative] petition to the extent necessary to determine whether constitutional and statutory requirements pertaining to the form of the petition have been satisfied[,] . . . [t]his limited inquiry . . . does not permit an evaluation of the merits of any constitutional objection to the proposal under the guise of determining whether the initiative petition in fact proposes a constitutional amendment [or a law].

Id. at 405 (emphasis added) (citations omitted). In short, even where a challenge purports to involve a constitutional provision pertaining to the required procedure or form of an initiative petition, the challenge will not be heard pre-election unless the issue required to be resolved by the alleged violation is so clear and settled as to constitute an obvious matter of form. This two-criterion framework for determining whether constitutional challenges are entitled to pre-election judicial review is in keeping with the directive that "[w]hen 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." Brown, 370 S.W.3d at 645 (alteration in

14 MO. CONST. art. III, sec. 50 provides, in pertinent part, that: "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 contain an enacting clause."

original) (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827). And the two-criterion framework logically recognizes that pre-election judicial review should be limited to challenges primarily pertaining to the current constitutional status of an initiative petition that fails to satisfy express "conditions precedent to placing a proposal on the ballot" in a manner so obvious as to be a matter of form. Missourians to Protect the Initiative Process, 799 S.W.2d at 828.

Plaintiffs rely heavily on State ex rel. Hazelwood Yellow Ribbon Committee v. Klos, 35 S.W.3d 457 (Mo. App. E.D. 2000) for the proposition that a constitutional challenge to the facial validity of an initiative petition need only involve a clear and settled issue of law to be entitled to pre-election review. According to Plaintiffs, it is unnecessary to allege a violation of a constitutional provision pertaining to the required procedure or form of an initiative petition. Plaintiffs' reading of Hazelwood Yellow Ribbon Committee is without merit. We have already explained that "facial invalidity" or "facial unconstitutionality" in the context of determining whether pre-election challenges to initiative petitions are ripe for judicial review refers only to obvious violations of constitutional and statutory requirements pertaining to the procedure and form of initiative petitions. 15

Moreover, the Eastern District could not have announced such a broad standard for permitting pre-election review of the constitutionality of initiative petitions, as Missouri Supreme Court precedent is to the contrary. See Christianson v. Goucher, 414 S.W.3d 584, 592 (Mo. App. W.D. 2013) (observing that "this court is 'constitutionally bound to

15 See supra note 10.

follow the most recent controlling decision of the Missouri Supreme Court'") (quoting Doe v. Roman Catholic Diocese of St. Louis, 311 S.W.3d 818, 822 (Mo. App. E.D. 2010)). In 2012, when Brown reiterated the two-criterion standard which must be established to permit pre-election review of constitutional challenges to an initiative petition, our Supreme Court quoted from United Gamefowl Breeders, a Missouri Supreme Court decision from May 2000. Brown, 370 S.W.3d at 645 (quoting United Gamefowl Breeders, 19 S.W.3d at 139). The Eastern District's November 2000 decision in Hazelwood Yellow Ribbon Committee was bound by this precedent. Moreover, United Gamefowl Breeders was not the first time our Supreme Court defined the parameters of permitted judicial review of pre-election challenges to initiative petitions by reference to two criteria. In State ex rel. Trotter v. Cirtin, 941 S.W.2d 498 (Mo. banc 1997), the seminal case relied on by the Eastern District in Hazelwood Yellow Ribbon Committee to explain its decision to conduct pre-election judicial review, our Supreme Court held that only issues so "clear or settled as to constitute matters of form" and involving "constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions," could be afforded pre-election judicial review. Trotter, 941 S.W.2d at 500.

Thus, Hazelwood Yellow Ribbon Committee cannot be permissibly relied on to argue that pre-election review of constitutional challenges is proper whenever, and merely because, the challenge involves a clear and settled issue of law. 16 The legal clarity of a

16 Hazelwood Yellow Ribbon Committee held that "in some instances, issues of substantive legality can be so 'clear or settled' as to effectively be tantamount to mere 'matters of form.'" State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35 S.W.3d 457, 468-69 (Mo. App. E.D. 2000) (quoting State ex rel. Trotter v. Cirtin, 941

constitutional challenge to an initiative petition will not authorize pre-election review unless the challenge involves a constitutional provision "relating to the procedure and form of initiative petitions." Brown, 370 S.W.3d at 645 (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827). A careful reading of Hazelwood Yellow Ribbon Committee demonstrates, in fact, that the Eastern District conducted pre-election review consistent with this two-criterion standard.

Hazelwood Yellow Ribbon Committee addressed an initiative measure that had the purpose of giving voters in charter cities the power to control whether TIF Redevelopment Plans would be permitted by requiring a "two-thirds majority referendum vote of approval by the [City of] Hazelwood voters, as a necessary condition precedent to the City's adopting any future TIF Redevelopment Plan or Project." 35 S.W.3d at 469. The initiative measure's purpose plainly violated an existing statute, section 99.835.3, which provided that "[n]o referendum approval of the electors shall be required as a condition to the issuance of [TIF] obligations." Id. As a result, the initiative measure plainly violated "[a]rticle VI, § 19(a) of the Missouri Constitution [which] provides . . . charter cities" with "powers . . . consistent with the constitution of this state and . . . not limited or denied either

S.W.2d 498, 500 (Mo. banc 1997)). This holding is leading readers astray, and must be read in context. The sentence the Eastern District cited from Trotter is immediately preceded by Trotter's holding that in pre-election contests "[o]ur single function is to ask whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded." Trotter, 799 S.W.2d at 500 (emphasis added) (quoting Missourians to Protect the Initiative Process, 799 S.W.2d at 827). Thus, Trotter's reference to pre-election review of issues of law "so clear or settled as to constitute matters of form" was not expressed as in independent exception to the general rule forbidding pre-election review of constitutional challenges to initiative petitions, but instead modified the ability to review even those challenges involving the procedure and form of initiative petitions. In other words, Trotter articulated the same two-criterion framework for determining whether a constitutional challenge to an initiative petition is eligible for pre-election review most recently reiterated in Brown, 370 S.W.3d at 645.

by the charter so adopted or by statute." Id. Article III, section 51 of the Missouri Constitution provides that an initiative petition "shall not be used . . . for any . . . purpose prohibited by this constitution," and thus pertains to the required procedure and form of an initiative petition. Because the challenge in Hazelwood Yellow Ribbon Committee involved a constitutional provision that addressed the required procedure or form of an initiative petition (article III, section 51), and "so clear [an issue] as to constitute a matter of form," pre-election judicial review of the challenge was proper. Brown, 370 S.W.3d at 645. The challenge in Hazelwood Yellow Ribbon Committee thus comported with the rationale permitting pre-election review because "regardless of the meritorious substance of a proposition, if the prerequisites of article III, § [51] are not met, the proposal is not to be on the ballot." Missourians to Protect the Initiative Process, 799 S.W.2d at 828.

D.

Having addressed the two criterion framework our Supreme Court has long identified as essential to authorizing pre-election review of constitutional challenges to an initiative petition, we now explain why those criteria are not met by the constitutional challenges asserted in Plaintiffs' Petition.

The Petition does not allege that the Proposed Measure violates article III, section 50 or section 51 of the Missouri Constitution, or any other Missouri constitutional provision pertaining to the required procedure or form of an initiative petition, the first prong of the two-criterion standard reiterated in Brown. In other words, the Petition does not allege "threshold issues that affect the integrity of the election itself." Brown, 370 S.W.3d at 645 (quoting United Gamefowl Breeders, 19 S.W.3d at 139). Instead, the *22 Petition asserts First Amendment, Equal Protection Clause, and Privileges and Immunities Clause challenges to the Proposed Measure. Constitutional challenges of this nature are routinely denied pre-election judicial review, as they do not involve Missouri constitutional or statutory provisions pertaining to the required procedure or form of an initiative petition. See, e.g., Union Elec. Co., 678 S.W.2d at 405-06 (holding that pre-election claims that an initiative is unconstitutional on its face because it draws an unreasonable distinction between electrical corporations and other utilities, constitutes a taking without due process of law, is retrospective in effect, impairs existing contract rights, and is preempted by federal legislation "are not ripe for decision"); Kuehner, 442 S.W.3d at 230 (holding that pre-election challenge of initiative petition because it would retrospectively modify existing collective bargaining agreements "addresses a substantive, and not a procedural or facial, constitutional concern that is not ripe for our consideration"); Knight, 282 S.W.3d at 21-22 (holding that pre-election constitutional challenges that initiative petition violated various provisions addressing use of gambling revenues for education, permitting the legislature to license riverboat gambling, and prohibiting special laws granting exclusives rights and privileges, and violated equal protection rights, were not ripe for adjudication).

As we have explained, a challenge involving a State constitutional provision that does not pertain to the procedure or form of an initiative petition might be eligible for pre-election review if the State constitutional provision is clearly and obviously violated by the purpose of an initiative petition, thus violating the "purpose" clause of article III, section *23 51 of the Missouri Constitution. 17 See Hazelwood Yellow Ribbon Committee, 35 S.W.3d at 469. Plaintiffs' constitutional challenges are not entitled to pre-election review via this narrow avenue for several reasons.

First, their Federal constitutional challenges could never qualify as a "purpose prohibited by this [meaning Missouri's] constitution." MO. CONST. art. III, sec. 51. Second, as observed, the Petition does not allege that the Proposed Measure violates the "purpose" clause of article III, Section 51 of the Missouri Constitution. Although Plaintiffs make this assertion in their appellate brief, they do so only in connection with the second point on appeal, which addresses the merits of their constitutional challenges. [Pls.' Br. 16] Plaintiffs do not argue in connection with their first point on appeal that their challenges were entitled to pre-election review because the Proposed Measure violates the "purpose" clause of article III, section 51 of the Missouri Constitution. Even had this argument been made as a part of Plaintiffs' first point on appeal, the argument would not have been preserved. Plaintiffs did not allege a violation of article III, section 51 of the Missouri Constitution at the earliest opportunity. 18 "To properly raise a constitutional challenge, a party must: [inter alia] (1) raise the constitutional question at the first opportunity . . . ." Peters v. Johns, 489 S.W.3d 262, 269 (Mo. banc 2016). "This rule is intended to prevent surprise to the opposing party and to accord the circuit court an

17 It is important to observe that this provision is limited to purposes that violate the Missouri Constitution, and makes no reference to the Federal Constitution. 18 It appears from the Record on Appeal that a violation of article III, section 51 was first raised by Plaintiffs in the proposed judgment submitted to the trial court for its consideration after the trial court heard oral arguments from counsel based on the parties' stipulated facts and exhibits. As noted, supra note 6, the parties' oral arguments to the trial court on the merits were not transcribed.

opportunity to fairly identify and rule on the issue." Id. Because Plaintiffs failed to raise a claimed violation of article III, section 51 "at the earliest opportunity, it is waived." Id. (holding that equal protection challenge not raised in plaintiff's pleadings was waived, notwithstanding "the accelerated timetable on which these election cases are decided").

Third, even if a violation of the "purpose" clause of article III, section 51 of the Missouri Constitution had been preserved for our review, Plaintiffs would be unable to establish that the violation is so clear and settled an issue as to constitute an obvious matter of form. The "purposes" of the Missouri Constitution allegedly violated by the Proposed Measure based on the Petition (article I, section 8 protecting free speech and association rights, and article I, section 2 affording equal protection) 19 require by their very nature a comparative assessment of the impairment of the constitutional right and the State interest involved, as conceded in the Petition and in Plaintiffs' Brief on appeal. [Petition ¶ 28 alleging the Proposed Measure is "an unreasonable restriction on speech and freedom of association in that it is neither reasonably related to nor narrowly tailored to" address a state interest; Petition ¶ 32 alleging there is "no rational basis" for the alleged disparate treatment caused by section 23.3 of the Proposed Measure; Pls.' Br. 19 noting "burden[s] [on] political speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest;" and Pls.' Br. 26 noting "differential treatment . . . must be evaluated according to a strict scrutiny standard, which requires the Government to prove that the restriction

19 No corollary provision of the Missouri Constitution addresses the Privileges and Immunities Clause of the Federal Constitution, the subject of Count III in the Petition.

furthers a compelling interest and is narrowly tailored to achieve that interest."] It cannot be said that the Proposed Measure's purpose is so clearly and obviously prohibited by article 1, section 2 or section 8 of the Missouri Constitution as to constitute a matter of form. If the issue in Union Electric Co., which was whether an initiative petition proposed an amendment to the constitution or a new law, was not so clear and settled as to constitute an obvious matter of form, 678 S.W.2d at 405, then it is difficult to conceive that complex substantive constitutional challenges like those raised in the Petition can ever satisfy this required criteria for pre-election judicial review. 20

Finally, the "purpose" clause in article III, section 51 of the Missouri Constitution cannot be interpreted as broadly as Plaintiffs suggest to "facially" defeat every initiative petition whose purpose is to modify an existing article of the constitution. Article III, section 50 and article XII, section 2(b) of the Missouri Constitution plainly envision use of the initiative petition process to "amend and revise" existing articles of the constitution. Though we need not define the precise parameters of the "purpose" clause to resolve this

20 Plaintiffs argue in connection with point two on appeal that language identical to that set forth in section 23.3(12) of the Proposed Measure has been "repeatedly" declared unconstitutional by Missouri courts. If that were the case, it might be a closer call whether the Proposed Measure clearly and obviously violates article III, section 51 because its purpose violates another purpose of the Missouri Constitution. However, Plaintiffs' representation is inaccurate. In making their argument, Plaintiffs rely first on the trial court decision that gave rise to our appellate review in Reeves, the outcome of which vacated the trial court's decision. Plaintiffs next suggest that we decided the Proposed Measure's constitutionality in Reeves by holding that neither "the passage of time [n]or the gathering of signatures will change the relative merits of Reeves's claim." 462 S.W.3d at 857. Reeves did not determine the constitutionality of the Proposed Measure, and instead declined to reach that issue because it was not ripe for adjudication. The referenced sentence from Reeves was not an endorsement of the trial court's determination about the constitutionality of the Proposed Measure, and did no more than note that Reeves's ability to adjudicate her claims would not be impaired by the passage of time. Finally, Plaintiffs suggest that language identical to that contained in section 23.3(12) was declared unconstitutional in Legends Bank v. State, 361 S.W.3d 383 (Mo. banc 2012), where the Supreme Court addressed the constitutionality of Subsection 13 of Section 130.01, Senate Bill 844 (2010). Though the Supreme Court did declare similar language unconstitutional in Legends, it did so on procedural grounds because the subject bill had been amended in its passage as to change its original purpose. Id. at 387. Legends did not address the substantive constitutionality of the language which now appears in section 23.3(12) of the Proposed Measure at all, let alone on First Amendment or Equal Protection grounds.

case, we comfortably conclude that the clause is not so broad in scope as to permit the argument that every initiative petition which modifies an existing article of the Missouri Constitution violates article III, section 51 because that purpose is prohibited by the Missouri Constitution.

In short, Plaintiffs' constitutional challenges to the Proposed Measure are not ripe for pre-election judicial review as they do not raise "threshold issues that affect the integrity of the election itself and . . . are [not] so clear as to constitute a matter of form." Brown, 370 S.W.3d at 645 (quoting United Gamefowl Breeders, 19 S.W.3d at 139). Any argued confusion regarding the permitted scope of pre-election judicial review falls away when this two-criterion standard for determining ripeness of pre-election challenges to initiative petitions is viewed and applied in the proper context. Plaintiffs' Petition was filed pursuant to section 116.200.1, the statute which affords authority to file pre-election challenges to a Secretary of State's decision to certify an initiative petition as sufficient or insufficient. Section 116.200.1 provides:

After the secretary of state certifies a petition as sufficient or insufficient, any citizen may apply to the circuit court of Cole County to compel him to reverse his decision. . . . within ten days after the certification is made.

The pre-election judicial review authorized by this section must necessarily be tailored, therefore, to the Secretary of State's sufficiency determination, a subject addressed by section 116.120.1. Section 116.120.1 requires the Secretary of State to determine whether an initiative petition "complies with the Constitution of Missouri and with this chapter" before certifying the petition as sufficient or insufficient. The sufficiency determination the Secretary of State is required to conduct plainly does not include whether an initiative *27 petition complies with the Federal Constitution. The sufficiency determination the Secretary of State is required to conduct does include whether an initiative petition complies with "the Constitution of Missouri and this chapter." A plain reading of Chapter 116 reveals that the General Assembly intended this phrase to refer to constitutional and statutory provisions pertaining to the procedure and form required to certify an initiative petition as sufficient to appear on the ballot. In fact, our Supreme Court has so held. See Union Elec. Co., 678 S.W.2d at 405 (holding that "barring exceptional circumstances, we will not look behind the face of the [initiative] petition to determine its constitutionality prior to its being voted on by the electorate[,] . . . [and] the Secretary of State and the courts . . . may look beyond the face of the petition [only] to the extent necessary to determine whether constitutional and statutory requirements pertaining to the form of the [initiative] petition have been satisfied") (emphasis added). See also, Ketchum v. Blunt, 847 S.W.2d 824, 830-31 (Mo. App. W.D. 1992) ("It is the secretary of state who is charged with the ultimate administrative determination as to whether the petition complies with the Constitution of Missouri and with the statutes.") (emphasis added) (citing section 116.120.1 and 116.150; Missourians to Protect the Initiative Process, 799 S.W.2d at 828).

Simply stated, challenges to an initiative petition which go beyond determining compliance with constitutional and statutory provisions pertaining to the required procedure and form of a "sufficient" initiative petition are not ripe for pre-election judicial review. They exceed the scope of the sufficiency determinations the Secretary of State is authorized and required to make before certifying an initiative petition for inclusion on the ballot.

E.

The trial court did not commit error in entering Judgment in favor of the Secretary of State and the Intervenors, and against the Plaintiffs, on all counts raised in the Petition because the Plaintiffs' constitutional challenges to the Proposed Measure are not ripe for pre-election judicial review.

Because we affirm the Judgment on this basis, we are not authorized to address the Judgment's alternative findings regarding the merits of Plaintiffs' constitutional challenges—findings the trial court was similarly not authorized to make, as the constitutional challenges are not ripe for adjudication. Plaintiffs' constitutional challenges can only be resolved in a properly filed post-election lawsuit should the Proposed Measure be adopted. 21

Conclusion

The trial court's Judgment declaring Plaintiffs' constitutional challenges to the Proposed Measure not ripe for pre-election judicial review is affirmed.

__________________________________ Cynthia L. Martin, Judge

All concur

21 We express no opinion on the Plaintiffs' post-election standing to raise each or any of the constitutional challenges raised in the Petition. Nor do we intend to convey that this court would have jurisdiction to afford appellate review to the Plaintiffs' claims if asserted post-election. MO. CONST. art. V, sec. 3 provides that: "The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a . . . provision of the constitution of this state." "Mere allegations of unconstitutionality, however, are insufficient to vest exclusive jurisdiction in the supreme court: 'The constitutional issue must be real and substantial, not merely colorable.'" Knight, 282 S.W.3d at 17 (quoting McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387, 404 (Mo. App. W.D. 2004)).

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