Appeals court overturns two Judge Green decisions in petition cases

Whenever someone files an initiative petition proposal to change the Missouri Constitution or state laws, the election laws allow "any citizen who wishes to challenge the official ballot title or the fiscal note (to) bring an action in the circuit court of Cole County."

And that lawsuit must be filed "within ten days after the official ballot title is certified by the secretary of state ..."

The law also requires the ballot title and fiscal note to be prepared within specified times, so they will appear on all pages of a proposed petition as it is circulated for signatures - a requirement that affected the outcome of one of two lawsuits the state appeals court decided last week.

Laura Reeves of St. Louis County went to court twice this year to oppose initiative petition proposals about campaign finance and ethics reforms.

Last Tuesday, the state appeals court's Western District in Kansas City ruled against both actions - at least for the time being.

In separate opinions written by Judge Karen King Mitchell for two different three-judge panels, the appeals court ruled:

• All but two of Reeves' questions raised in the discovery process for one lawsuit were "not relevant to the subject matter involved in the pending litigation." Green had ordered Secretary of State Jason Kander to answer the questions, called "interrogatories."

• State law doesn't allow courts to rule on constitutional challenges before a proposal has been certified to appear on a statewide ballot - so Green's ruling that a petition proposal "violated the Missouri Constitution" was premature.

Reeves' attorney, Marc Ellinger of Jefferson City, said in an email: "We are reviewing the decisions and evaluating our options, including an appeal to the Supreme Court."

Appeals Court says Green ruled too soon

Secretary of State Jason Kander on Jan. 13 certified for circulation a petition submitted by Todd Jones and the group Returning Government to the People, which would impose campaign finance limits.

Its ballot title and fiscal note said:

"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 governmental entities. Any potential impact to revenues for state and local governmental entities is unknown."

Among other things, the proposed amendment to Missouri's Constitution would say "the people of the State of Missouri hereby find and declare that excessive campaign contributions to political candidates create the potential for corruption and the appearance of corruption" and large campaign contributions by wealthy individuals, corporations and special interest groups allow them "to exercise a disproportionate level of influence over the political process."

Reeves challenged the proposal on Jan. 21.

After hearing arguments, Green ruled on April 17: "The proposed measure's unconstitutionality is so clear and settled as to constitute a matter of form."

Green wrote in his 10-page final judgment that the proposal unconstitutionally prohibits some groups from contributing to political campaigns while allowing others to do so.

And, he wrote, the petition proposed to amend two different parts of the state Constitution "violates the Missouri Constitution. (The) Petition ... significantly impairs the rights guaranteed to individuals under Article I, Section 8, of the Missouri Constitution and completely eliminates rights guaranteed thereunder as to certain individuals and entities."

The appeals court never ruled on Green's findings.

Instead, the three-judge panel cited a 1981 state Supreme Court ruling among its reasons for saying Green acted too soon, ""that at no place in either the Missouri Constitution or in the implementing statutes is any court granted the power to enjoin an amendment from being placed on the ballot upon the ground that it would be unconstitutional if passed and adopted by the voters.'"

Although state law allows people to challenge the proposed ballot title - which Reeves had done and Green had rejected - Mitchell wrote for the appeals court: "Our Supreme Court has already determined that a claim that an initiative petition contains multiple subjects, in violation of Article III, section 50, is not ripe before the Secretary determines whether to certify the initiative for inclusion on the ballot."

So, the appeals court ruled, Reeves will have to wait until Jones and the Returning Government group circulate their petitions, to see if they actually can gather enough valid signatures from registered voters to place their proposed amendment on the November 2016 ballot.

In a Returning Government to the People news release after the court's nine-page ruling, the group said it was pleased with the three-judge panel's decision.

"Unless the plaintiff seeks review in the Missouri Supreme Court, this ruling clears the way for circulation of the Missouri Campaign Contribution Reform Initiative."

The petition, the group said, "will allow Missourians to voice their overwhelming support for much-needed campaign finance reform. Missouri is one of only four states that impose no limits on campaign contributions, resulting in legalized bribery and the resulting corruption in Jefferson City."

The group's news release did not comment on the court's finding that "it is doubtful that either the passage of time or the gathering of signatures will change the relative merits of Reeves' claims ..."

Mitchell also wrote: "While both parties agree that it would be helpful to know whether the initiative is constitutional before the proponents undertake the significant effort and expense necessary to get the required signatures," the Supreme Court already has ruled "to grant such relief at this juncture would be contrary to the general prohibition on (courts giving) advisory opinions."

Appeals court said interrogatories must be relevant

On Dec. 30, 2014, Secretary of State Jason Kander's office certified a proposed constitutional amendment for ethics and campaign finance reforms affecting lawmakers.

The petition's ballot title and fiscal note said:

"Shall the Missouri Constitution be amended to:

• establish limits on campaign contributions that candidates for state legislature can accept from individuals or entities;

• establish a limit on gifts that state legislators, and their employees, can accept from lobbyists;

• prohibit state legislators, and their employees, from serving as paid lobbyists for a period of time or being paid for campaign work;

• prohibit political fundraising on general assembly property;

• require legislative records to be open to the public; and

• prohibit any law that disqualifies the counting of valid signatures on petitions based on how voters sign the petition?

"State governmental entities estimate increased annual operating costs of at least $62,000. Local governmental entities estimate no impact to operating costs. Any potential impact to state and local governmental revenues is unknown."

Reeves' lawsuit was filed Jan. 9 and assigned to Judge Dan Green.

As described in a 12-page ruling written by Judge Karen King Mitchell for a different three-judge panel, the appeals court described Reeves' suit as "challenging the Secretary's summary statement as insufficient and unfair," and containing "allegations that the Secretary was an outspoken proponent of campaign finance reform, and ethics reform in general, and that the summary statement was therefore "the result of a biased and prejudiced process controlled and overseen by a proponent of the changes in the' Petition."

But there hasn't been any significant hearing over the lawsuit's provisions, because the lawyers have been arguing over discovery issues.

That's the process where the parties ask each other to answer questions and provide documents to be reviewed before a court hearing.

Mitchell wrote: "Reeves served discovery requests upon the Secretary, including interrogatories, requests for production, and requests for admission.

"The bulk of the requests referred to the Secretary's personal beliefs about campaign finance and ethics reform generally, including requests related to public and private positions that the Secretary has taken on the subject matter of the Petition, as well as the Secretary's role in drafting ballot summaries.

"The Secretary objected to each request, arguing that the views of the Secretary on the substance of the Petition were irrelevant to the legal issue of the sufficiency and fairness of the summary statement."

The state laws governing petition ballot titles require that they use "language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure."

Reeves argued, in the appeals court's words: "The Secretary's position on the subject matter of the Petition is relevant to the determination of whether the language of the summary statement is insufficient or unfair because (state law) prohibits the Secretary from using "intentionally argumentative language.'"

When Green ordered Kander to reply to the questions, the state asked the appeals court for a Writ of Prohibition preventing the judge's order from taking effect.

In the ruling, Mitchell wrote: "Indeed, it is odd that Reeves would wish to take on an additional burden in this matter - proving subjective intent - when no court addressing the issue has ever implied that the Secretary's subjective beliefs are in any way relevant or that a petitioner bears such a burden.

"Courts reviewing ballot summary challenges have unanimously indicated that the language of the ballot summary is the relevant consideration."

Even though the secretary of state is a politician who is "likely to have positions on many of the important issues of the day (and) initiative petitions often address important and controversial issues ... the statutes provide the Secretary with the duty to prepare ballot summaries despite these facts," Mitchell wrote.

The court said Kander should answer two of the questions Reeves posed, noting in a footnote that one "simply requests the identities of the individuals preparing the responses," while the other "requests the identity of any expert that the Secretary intends to call at trial, along with the expert's qualifications and the subject matter of the proposed testimony."

But it rejected Reeves' other discovery questions.

Mitchell wrote: "Because Reeves has pointed to no factual issue for which her proposed discovery request has any relevance or is "reasonably calculated to lead to the discovery of admissible evidence,' she has failed to meet her burden to establish a right to the discovery" under the Supreme Courts rules for court procedures.