BERGMAN v. MILLS, 988 S.W.2d 84 (Mo.App.W.D. 1999)

ROY BERGMAN, TIMOTHY HEUISER, AND JAY NIXON, ATTORNEY GENERAL OF THE STATE OF MISSOURI, APPELLANTS, vs. FRED M. MILLS, ET AL., AND REBECCA McDOWELL COOK, SECRETARY OF STATE OF THE STATE OF MISSOURI, AND CLAIRE C. McCASKILL, STATE AUDITOR OF THE STATE OF MISSOURI, RESPONDENTS.

No. WD 56874 (consolidated with WD 56892 and WD 56893)Missouri Court of Appeals, Western District.
March 5, 1999.

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, THE HONORABLEBYRON L. KINDER, JUDGE.

Page 85

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

Page 86

Charles A. Weiss, St. Louis, for Bergman and Heuiser.

James A. McAdams, Atty. Gen., Jefferson City, for appellants.

George A. Bartlett, Jefferson City, for Mills, Sr., et al.

Before James M. Smart, Jr., Presiding Judge, Joseph M. Ellis, Judge, and Victor C. Howard, Judge

PER CURIAM:

[1] This is a consolidated appeal from three separate lawsuits, all relating to the official ballot summary for a referendum on carrying

Page 87

concealed weapons, which is to be voted on by the citizenry on April 6, 1999.[1] The issue on this appeal is the legal effect of Section B of House Bill 1891, which purports to dictate the ballot title for the referendum in question.

FACTS
[2] On May 15, 1998, the General Assembly adopted House Bill 1891, a bill directing that a referendum be submitted to the people concerning whether citizens who apply and meet certain requirements should be permitted to carry concealed firearms. The bill provided that the referendum would be put to a vote of the people on April 6, 1999. Section B of House Bill 1891 contained what was described as the official ballot title, which is set out in the Appendix to this opinion, to be used in submitting the measure to the voters. Subsequently, Fred M. Mills, Sister Mary Jean Ryan, FSM, and Chuck L. Keithley, as citizens and voters, brought an action in the circuit court of Cole County, Missouri, to challenge the official ballot title mandated by the legislature in House Bill 1891. The Mills petition alleged that the Secretary of State, State Auditor and Attorney General improperly failed to discharge their ballot title drafting duties as set forth in §§ 116.160, 116.170, and 116.175,[2] and that the official ballot title contained in Section B of House Bill 1891 was without legal effect. On January 12, 1999, the trial court entered a preliminary order in mandamus directing the Secretary of State, State Auditor and State Attorney General to perform their statutory ballot title drafting duties pursuant to Chapter 116, or to show cause why such order should not be entered. On January 21, 1999, Roy Bergman and Timothy Heuiser, also as citizens and voters, filed an Application to Intervene in the Mills action. The Application was orally denied by the court at a hearing held that same day. Also at that hearing, the court rejected the defendants’ assertions that the plaintiffs’ claims were barred by the doctrine of laches, and found that plaintiffs had standing to proceed in the matter and that mandamus was an appropriate remedy. The court specifically found that the Secretary of State has the responsibility pursuant to § 116.160 to draft the ballot titles for referenda.

[3] On January 25, 1999, the trial court entered its written order in the case finding that the ballot language contained in Section B of House Bill 1891 was without legal effect, and directing the state defendants to perform their official ballot title preparation activities as set forth in Chapter 116. In compliance with the court’s order, the state officials completed their title drafting functions as directed by the court and certified the official ballot to the local election authorities. The official ballot title certified by the Secretary of State is also set out in the Appendix to this opinion. From this judgment, the Attorney General appeals, as do the rejected Intervenors, Bergman and Heuiser. For the sake of clarity, this case will hereafter be referred to as “Mills I.” [4] On February 3, 1999, Bergman and Heuiser filed a five count petition in the circuit court of Cole County (hereinafter referred to as “Bergman“). Count I of the petition was a constitutional challenge to Sections 116.160, 116.170 and 116.175; Count II represents a constitutional challenge to the same sections as applied to House Bill 1891; Counts III and IV generally sought a Writ of Mandamus directing the Secretary of State to notify election authorities that the ballot title for House Bill 1891 previously certified had been stricken and not to publish or distribute same, and ordering the Secretary of State to notify election authorities that the official ballot title for House Bill 1891 was as formulated and prescribed in Section B of House Bill 1891; and, finally, Count V challenged the official ballot title of House Bill 1891 as

Page 88

drafted and certified by the Secretary of State pursuant to § 116.190.

[5] On February 4, 1999, Fred M. Mills, filed a second action in the Cole County circuit court (hereinafter “Mills II“), which was limited to a statutory challenge pursuant to § 116.190 to the official ballot title for House Bill 1891 as certified by the Secretary of State. On February 11, 1999, the trial court conducted an expedited hearing in Bergman and Mills II. At that hearing, the court granted the applications of the Attorney General and Fred M. Mills to intervene in the Bergman case, as well as the State Auditor’s motion to consolidate Bergman an Mills II. Finally, after the hearing, the court entered its judgment incorporating the record, pleadings and judgment i Mills I into the consolidated case; finding that the ballot title as prepared by the Secretary of State was neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure and that the language was sufficient and fair and in compliance with § 116.160.2; that the fiscal note summary as prepared by the State Auditor was approved and met the requirements of § 116.175; and ruling against plaintiffs Bergman and Heuiser on their claims and against plaintiff Mills on the claims contained in Mills II. [6] From these judgments, the Attorney General has appealed the trial court’s ruling in Mills I, as have Bergman and Heuiser, based on the denial of their application to intervene. Bergman and Heuiser also appeal from the judgment in the consolidated case of Bergman and Mills II. All appeals have been consolidated in this court. On this appeal, Bergman and Heuiser have abandoned their constitutional challenges to Section 116.160, 116.170, and 116.175, as written and as applied in this instance. Thus, we need neither determine whether we have jurisdiction of these challenges or address their merits.[3]

STANDARD OF REVIEW
[7] Mandamus lies only when there is an unequivocal showing that a public official failed to perform a ministerial duty imposed by law. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App.W.D. 1998). To be entitled to relief, there must be a showing that the applicant has a clear, unequivocal, specific and positive right to have performed the act demanded. Id. The court determines whether the right to mandamus is clearly established and presently existing by examining the statute under which the right is claimed. Id. “The principle at the heart of [the writ of mandamus] is that public officers are required to perform ministerial duties without any request or demand, and the entire public has the right to that performance.” Missouri Coalition forthe Env’t. v. Joint Comm. on Admin. Rules, 948 S.W.2d 125, 131 (Mo.banc 1997) (quoting State ex rel. Twenty-Second JudicialCircuit v. Jones, 823 S.W.2d 471, 475 (Mo.banc 1992)).

[8] Appellate courts review the grant of a writ of mandamus under an abuse of discretion standard. Missouri Bluffs Golf JointVenture v. St. Charles County Bd. of Equalization, 943 S.W.2d 752, 754-55 (Mo.App.E.D. 1997). Under an abuse of discretion standard, we will reverse the trial court’s ruling only when it is “`so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'”

Page 89

Whitman’s Candies, Inc. v. Pet Inc., 974 S.W.2d 519, 527 (Mo.App.W.D. 1998) (quoting State ex rel. Webster v. LehndorffGeneva, Inc., 744 S.W.2d 801, 804 (Mo.banc 1988)). If reasonable people could differ about the propriety of the trial court’s ruling, there is no abuse of discretion. Whitman, 974 S.W.2d at 527-28.

DELEGATION OF AUTHORITY
[9] Article III, § 52(a), of the Missouri Constitution of 1945 provides, in pertinent part, that “a referendum may be ordered . . . by the General Assembly, as other bills are enacted. . . .” Referendum, therefore, is a constitutionally authorized method for the General Assembly to delegate its legislative authority. Akin v.Dir. of Revenue, 934 S.W.2d 295, 299 (Mo.banc 1996). A referendum is not subject to the veto power of the Governor. Id. Rather, “Article 3, § 52(a), authorizes reference of a bill to a veto or approval by the people and requires that once a bill is referred, it must be submitted to voters at a general election or special election provided for in the bill.” Id.

[10] It is conceded by all parties that House Bill 1891 was properly adopted and is to be submitted to the voters on April 6, 1999. And, it is important to understand that the dispute involved in this case is not about Section A of House Bill 1891, the referendum measure itself, but rather about Section B only, which contains the proposed ballot title. The dispositive issue is whether the General Assembly could prescribe the official ballot title to be used for such election, as it purported to do in Section B of House Bill 1891. The answer to this question requires analysis of constitutional and statutory provisions relating to the manner in which referendums are submitted to the voters. [11] The Missouri constitution, unlike the federal constitution, does not grant legislative power to the General Assembly, but rather is a limitation thereon. Americans United v. Rogers, 538 S.W.2d 711, 716 (Mo.banc 1976). Thus, except for restrictions imposed by the Missouri constitution and statutes enacted by the General Assembly, the power of the state legislature is unlimited and practically absolute. Id. This premise flows from the “basic principle that the General Assembly, unless restrained by the constitution, is vested in its representative capacity with all the primary power of the people.” Three Rivers Junior CollegeDist. of Poplar Bluff v. Statler, 421 S.W.2d 235, 238 (Mo.banc 1967). However, the scope of the legislature’s methods of acting are not as comprehensive as the scope of its objects. Consequently, the General Assembly has “all the powers and privileges which are necessary to enable it to exercise in all respects, in a free, intelligent, and impartial manner, its appropriate functions, except so far as it may be restrained by the express provisions of the Constitution, or by some expresslaw made unto itself, regulating and limiting the same.” Bohrerv. Toberman, 227 S.W.2d 719, 723 (Mo.banc 1950) (quoting LUTHER STEARNS CUSHING, LEX PARLIAMENTARIA AMERICANA: ELEMENTS OF THE LAW AND PRACTICE OF LEGISLATIVE ASSEMBLIES IN THE UNITED STATES OF AMERICA 221 (1874) (emphasis added). [12] While the legislature, as the representative body, and possessed of the power of the people, is entitled to enact legislation prescribing the ballot title for a referendum measure, the question is whether the ballot title in this case constitutes a valid and legally effective exercise of legislative power. While respondents argue that there are constitutional constraints on the legislature’s power to draft such ballot language, for purposes of this discussion, we will assume,arguendo, that there is no constitutional prohibition on such legislative action. Rather, the decisive question is whether, by enactment of §§ 116.160, 116.170, 116.175, and 116.180, the legislature has limited its own ability to prescribe ballot language without first amending or repealing those statutes in a manner permitted by the Constitution. [13] The legislature has the power to delegate its authority, even that which involves an exercise of discretion. See, e.g.,Menorah Medical Ctr. v. Health and Ed. Facilities. Auth., 584 S.W.2d 73 (Mo.banc 1979) and ABC Security Service, Inc. v.Miller, 514 S.W.2d 521 (Mo. 1974). Significant to the

Page 90

case sub judice, the legislature adopted § 116.160[4]
which provides:

1. After the general assembly adopts a joint resolution proposing a constitutional amendment or a bill which is to be referred to a vote of the people and it has been delivered to the secretary of state, the secretary of state shall promptly forward the resolution or bill to the state auditor. Within twenty days after receipt of the resolution or bill, the secretary of state shall prepare and transmit to the attorney general a summary statement of the measure. . . . The summary statement may be distinct from the legislative title of the proposed constitutional amendment or bill. The attorney general shall within ten days approve the legal content and form of the proposed statement.
2. The official summary statement shall contain no more than fifty words. The title shall be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure. (Emphasis added).

[14] In Mills I, the trial court found that the Secretary of State, the State Auditor, and the Attorney General had not performed the duties required of them by Chapter 116. The court further found that the provisions of Chapter 116 provide for the Secretary of State and the State Auditor to formulate and certify official ballot titles for initiatives and referendums, with the Attorney General to approve the legal content and form of the summaries. The trial court further found that the legislature could revise Chapter 116 to permit it to formulate an official ballot title but that it had not chosen to do so, implicitly finding that Section B of House Bill 1891 did not amend or repeal any provision of Chapter 116. Accordingly, the trial court entered its order of mandamus directing the Secretary of State, State Auditor, and Attorney General to perform their statutorily mandated duties under Chapter 116. [15] Bergman, Heuiser and the Attorney General all argue that the trial court erred in finding that the General Assembly could not formulate an official ballot title as it purported to do in Section B of House Bill 1891. They contend that since the General Assembly’s power is plenary, that notwithstanding the fact that it has delegated the authority to prepare official ballot summaries in all cases of referendums to the Secretary of State, it has somehow retained an inherent authority to draft official ballot summaries itself whenever it chooses to do so. We disagree. [16] Our Supreme Court has consistently held that the doctrine of separation of powers, as set forth in Missouri’s constitution prevents abuses which can flow from centralization of power and is, therefore, vital to our form of government. MissouriCoalition for the Env’t., 948 S.W.2d at 132. Thus, it is said that “once the legislature `makes its choice in enacting legislation, its participation ends.'” Id. at 134 (quotingBowsher v. Synar, 478 U.S. 714, 733-34, 106 S.Ct. 3181, 3191-92, 92 L.Ed.2d 583 (1986)). “[U]nder our constitution, the legislature may not control, supervise or manage the execution of a law except by the language contained in the law itself.” StateAuditor v. Joint Comm. on Legislative Research, 956 S.W.2d 228, 233 (Mo.banc 1997). [17] The legislature is strictly confined by Article 2, Section 1 of the Missouri Constitution to enacting laws and it is not permitted

Page 91

to execute laws already enacted. Missouri Coalition forthe Env’t., 948 S.W.2d at 133. The Secretary of State, State Auditor and Attorney General are constitutional officers within the executive department. MO. CONST. art. IV, § 12. By enacting § 116.160 et seq., the legislature has delegated the authority for the preparation of the official ballot summary, the fiscal note and the fiscal note summary and the approval thereof to the Secretary of State, the State Auditor and the Attorney General as executive officers. As noted previously, “the legislature may not control, supervise or manage the execution of a law except by the language contained in the law itself.” State Auditor, 956 S.W.2d at 233. There is nothing in Chapter 116 that expressly reserves unto the General Assembly the authority to prepare official ballot summaries when it desires to do so, nor is there any implied reservation of such power. Accordingly, the legislature has limited its ability to prescribe ballot language by enacting §§ 116.160 et seq. and it cannot now purport to control the execution of the law by adopting Section B of House Bill 1891.

[18] Moreover, the adoption of House Bill 1891 is neither an amendment nor repeal of Sections 116.160 et seq. because House Bill 1891 did not comply with the passage and presentment requirements for legislative action. As our Supreme Court noted in Missouri Coalition for the Environment, our constitution’s passage and presentment requirements establish that “legislative actions, whether by committee, by resolution of one house, or by joint resolution of the whole legislature, cannot amend, modify, rescind or supplant [a statute] unless the legislature follows the bill passage requirements. The bill must be passed by a majority vote of the House and Senate and the Governor must be given an opportunity to veto the bill.” Missouri Coalition forthe Env’t., 948 S.W.2d at 134. In other words, Section A of House Bill 1891 was adopted by the General Assembly as a referendum issue to be submitted to the voters. Section B (dealing with the issue of how the referendum measure would be described on the ballot) was not intended to be voted on by the people. For such to have been the case, it would be necessary that there be a separate, prior election in which the voters would decide whether to adopt the proposed ballot title to be used in a subsequent election on Section A (the concealed weapons referendum itself). Nor was Section B presented to the Governor for his signature or veto. While Section A of House Bill 1891, the referendum measure itself, may hereafter become law if passed by the voters, Section B containing the purported ballot title will not be part of the law even then. Thus, it cannot be said that Section B was an amendment to, or repeal of, §§ 116.160 et seq. because it was not adopted in a manner permitted by the Constitution.[5] [19] Accordingly, the trial court did not err in finding that Section B of House Bill 1891 was without legal effect and in ordering the Secretary of State, the state Auditor and the Attorney General to comply with the provisions of Chapter 116.

CHALLENGE PURSUANT TO § 116.190
[20] Bergman and Heuiser also claim that the trial court erred by failing to hold that the summary statement prepared by the Secretary of State was insufficient and unfair.[6] The summary, which is required by § 116.160.2 to contain no more than fifty words, is set out in the Appendix to this opinion.

[21] The standard of review of the trial court’s decision is that for appellate review in cases tried without a jury. Murphy v.Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We

Page 92

must sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id.

[22] Section 116.190 provides for a challenge of an official ballot title, which consists of the summary statement prepared by the Secretary of State and the fiscal note summary prepared by the State Auditor, on the ground that it is insufficient or unfair. The words “insufficient” and “unfair” mean “inadequate” and “marked by injustice, partiality, or deception.” Hancock v.Secretary of State, 885 S.W.2d 42, 49 (Mo.App.W.D. 1994). The important test is whether the language fairly and impartially summarizes the purposes of the measure, so that the voters will not be deceived or misled. Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 405 (Mo.banc 1984). [23] Bergman and Heuiser argue that the summary statement is vague, ambiguous, and insufficient because the phrase “various statutory requirements” does not inform the voters of the nature of the requirements specified by statute. Given the constraints of a fifty-word limit on adequately detailing numerous statutory criteria in addition to posing the overall question presented by the referendum, the summary statement prepared by the Secretary of State is a sufficient description of the measure. [24] Nevertheless, Bergman and Heuiser suggest language which they claim mentions, however briefly, virtually all of the requirements specified by statute. However, even if the language proposed by them is more specific, and even if that level of specificity might be preferable, whether the summary statement prepared by the Secretary of State is the best language for describing the referendum is not the test. The burden is on the opponents of the language to show that the language was insufficient and unfair, and that burden was not met. SeeHancock, 885 S.W.2d at 49. [25] Bergman and Heuiser also complain that the summary statement uses a significant portion of its fifty-word limit to note that, in St. Louis County, it would be the chief of police, not a sheriff, who would be required to issue the permits if the requirements were met. Again, even if they are correct that this is not the best utilization of the allotted space, that is not the test. Id. The issue is whether the language is insufficient and unfair, and appellants have failed to show that it is. Id. Bergman and Heuiser further assert that the summary statement is misleading because it says that law enforcement officials would be “required” to issue permits if the statutory requirements were satisfied. They contend that it would be more fair and accurate for the summary statement to say that the officials would be “authorized” to issue permits. They argue that, in several ways, the measure gives a law enforcement officer some discretion in determining whether the applicant has genuinely met the statutory requirements. This may be true; however, if the officer determines that the requirements have, in fact, been satisfied, the issuance of the permit becomes mandatory. Consequently, it is not deceptive or misleading for the summary statement to say that the officer is “required” to issue the permit under such circumstances. [26] The trial court did not err in finding that the official ballot title certified by the Secretary of State was not insufficient or unfair under the provisions of § 116.190.[7] [27] Respondent Mills filed a motion to dismiss the appeals herein on various grounds which was taken with the case. The motion is hereby overruled. [28] Judgment affirmed.

APPENDIX
The ballot title contained in Section B of House Bill 1891:

“Shall state or local law enforcement agencies be authorized to issue permits to law-abiding citizens at least twenty-one years of age to carry concealed firearms outside their home for personal protection

Page 93

after having passed a state and federal criminal background check and having completed a firearms safety training course approved by the Missouri Department of Public Safety?”

The ballot title certified by the Secretary of State:

“Shall sheriffs, or in the case of St. Louis County, the chief of police, be required to issue permits to carry concealed firearms to citizens who apply if various statutory requirements are satisfied?
“Because of the discretion given to local law enforcement to verify the accuracy of applications, the costs are uncertain. Application fees are estimated to cover most costs for the first three years. Subsequently, local governments, as a whole, may incur costs from $500,000 to $1,000,000 annually, not covered by fees.”