Scott Fitzpatrick, in his official capacity as Missouri State Treasurer v. John R. Ashcroft, in his official capacity as Missouri Secretary of State
WD85060
| Mo. Ct. App. | Jan 13, 2022Background
- In 2021 the Missouri General Assembly passed HJR 35, proposing to amend Mo. Const. art. IV, §15 to: extend certain investment maturities from five to seven years; permit investment in highly rated municipal securities; and allow the General Assembly by statute to authorize "other reasonable and prudent" investments for the State Treasurer.
- The Secretary of State prepared an official ballot title (including a summary statement) and fair ballot language; the Attorney General approved both; the measure was certified for the November 8, 2022 ballot.
- Treasurer Scott Fitzpatrick sued under §116.190 and §116.025 challenging (1) the summary statement's use of the word "override," and (2) parts of the fair ballot language (that it misleadingly states the General Assembly would "invest state funds" and would have sole authority to determine investment avenues); parties stipulated facts; the circuit court largely rejected Fitzpatrick's challenges but revised the "no" fair-language section by agreement.
- Fitzpatrick appealed 14 days after the circuit-court judgment; Secretary Ashcroft moved to dismiss as untimely under §116.190.4 (which authorizes appeals "within ten days").
- The court of appeals held §116.190.4 creates a permissive, ten-day interlocutory appeal option but does not preclude seeking review after a judgment becomes final under §512.020 and Rules 81.04/81.05/75.01; Fitzpatrick's prematurely filed notice was treated as filed when the judgment became appealable and the dismissal motion was denied.
- On the merits the court affirmed: the summary statement and the challenged portions of the fair ballot language were not unfair or insufficient.
Issues
| Issue | Fitzpatrick's Argument | Ashcroft's Argument | Held |
|---|---|---|---|
| Timeliness of appeal (whether appeal had to be filed within 10 days under §116.190.4) | §116.190.4's "may" applies only to Supreme Court appeals; general Rules control; his later filing was timely under Rules 81.04/81.05 | §116.190.4 is a special statutory proceeding; "may" means "shall" here and 10-day limit is exclusive | §116.190.4 creates a permissive 10‑day interlocutory appeal right but is not exclusive; premature notice treated as filed when judgment became appealable; dismissal denied |
| Official ballot summary — use of word "override" | "Override" is argumentative and misleading; HJR 35 only expands authority, does not abolish or reset constitutional limits | "Override" reasonably describes the amendment’s effect because it permits the legislature to prevail over current constitutional restrictions by statutory expansion | The word "override" is fair and sufficient; summary need only give voters a sufficient idea of the proposal |
| Fair ballot language — phrase that a "yes" vote will "grant the General Assembly statutory authority to invest state funds" (implying GA will invest) | Misleading: implies GA will invest funds (when Treasurer makes investments) | Accurate enough: amendment gives GA statutory authority to allow additional investments (central feature is GA's new authority) | Not unfair/insufficient when read in context of whole "yes" section; it conveys the amendment's central feature |
| Fair ballot language — phrase that GA may "determine investment avenues" (implying exclusive control) | Misleading: implies GA would have sole authority over Treasurer's investment choices | Language does not imply exclusivity; it states GA may determine avenues for the Treasurer to use | Not unfair/insufficient; overall wording makes clear Treasurer still invests and GA would determine available avenues |
Key Cases Cited
- Spicer v. Donald N. Spicer Revocable Living Tr., 336 S.W.3d 466 (Mo. banc 2011) (timely filing of a notice of appeal is jurisdictional)
- Boeving v. Kander, 493 S.W.3d 865 (Mo. App. W.D. 2016) (construction of §116.190 appellate provisions)
- Sanford v. CenturyTel of Mo., LLC, 490 S.W.3d 717 (Mo. banc 2016) (when legislature authorizes interlocutory appeals, ten‑day rule applies to those appeals)
- Brown v. Carnahan, 370 S.W.3d 637 (Mo. banc 2012) (summary statements must be sufficient and fair)
- Sedey v. Ashcroft, 594 S.W.3d 256 (Mo. App. W.D. 2020) (fairness assessed in context of overall ballot language)
- Pippens v. Ashcroft, 606 S.W.3d 689 (Mo. App. W.D. 2020) (challenger bears burden to show summary/fair language is unfair or insufficient)
- Frye v. Levy, 440 S.W.3d 405 (Mo. banc 2014) (statutory "may" vs. mandatory construction guidance)