Appellants Missouri Jobs with Justice and Valerie Gordon appeal from a judgment entered by the Circuit Court of Cole County denying their motion to intervene as a matter of right in an action challenging the sufficiency and fairness of the ballot titles and fiscal notes of two ballot initiative petitions concerning Missouri’s minimum wage law. For the following reasons, the judgment is affirmed in part and reversed in part.
On November 17, 2011, Respondent Victor Allred, a restaurant owner, brought an action, pursuant to § 116.190,
On November 29, 2011, Appellants Missouri Jobs with Justice (“MJJ”) and Valerie Gordon sought to intervene as a matter of right in Respondent’s action challenging the Minimum Wage Initiative Petitions. In their Motion to Intervene, MJJ alleged that it is a non-profit eorpo-
Respondent Allred filed suggestions in opposition, to which Appellants filed their reply, and both parties filed affidavits. Thereafter, a brief hearing was held where Appellants’ counsel was given an opportunity to present a short argument as to why intervention should be permitted, and subsequently, on February 22, 2012, the circuit court entered a judgment denying Appellants’ motion to intervene as of right, or, in the alternative, permissively. In doing so, the court stated that “[flor purposes of this motion, the Court accepts as true all factual allegations set forth in the affidavits submitted in this matter.” The trial court also granted Appellants leave to participate as amicus curiae and file briefing consistent with that status. Appellants timely filed their appeal.
Appellants assert that the trial court erred as a matter of law by denying Appellants’ motion for leave to intervene as defendants in Respondent’s action challenging the ballot titles and fiscal notes for the minimum Wage Initiative Petitions because Appellants are entitled to intervene as of right pursuant to Rule 52.12(a)(2). Rule 52.12(a) governs intervention as of right. Rule 52.12(a) provides:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Thus, “[i]n the absence of a statute conferring an unconditional right of intervention,” a person seeking to intervene must establish the following three elements: “(1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicant’s ability to protect the interest is impaired or impeded; and (8) that the existing parties are inadequately representing the applicant’s interest.” Id. at 127 (internal quotation omitted). “The proposed intervenor carries the burden of establishing the presence of all three elements required for intervention as a matter of right.” Id. ‘When an applicant satisfies the elements, the right to intervene is absolute, and the motion to intervene may not be denied.” McMahon v. Geldersma,
A motion to intervene pursuant to Rule 52.12(a) is typically simple motion practice. The procedure is set forth in Rule 52.12(c):
A person desiring to intervene shall serve a motion upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.
The applicant files a motion to intervene setting out why it should be permitted to intervene under the Rule and, typically, would attach a proposed pleading and perhaps exhibits in support of the motion. The motion is called up for a hearing, the parties appear and present arguments, and the court makes its decision. There is seldom an evidentiary hearing. Indeed, it has been held that the Rule “should be liberally construed to permit broad intervention” and that even the requirement of a pleading may be excused. State ex rel. St. Joseph, Mo. Ass’n of Plumbing, Heating and Cooling Contrators, Inc. v. City of St. Joseph,
Current Rule 52.12 was adopted in 1972 and has remained essentially the same since then. In 1978, our Supreme Court first held that an appeal would lie from denial of a motion to intervene of right. In doing so, the Court stated:
But where a statute or the practical necessities grant the applicant an absolute right to intervene, the order denying intervention becomes appealable. Then it may fairly be said that the applicant is adversely affected by the denial, there being no other way in which he can better assert the particular interest which warrants intervention in this instance. And since he cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an appeal therefrom.
State ex rel. Reser v. Martin,
The applicable standard of review is found in Murphy v. Carron,536 S.W.2d 30 , 32 [1-3] (Mo. banc 1976). The trial court’s judgment will be reversed if it erroneously declares or applies the law. The burden is on the intervenor, as pleader, to show all the elements required for intervention as of right.
Id. at 180. Since McDaniel, numerous cases have repeated that this is the proper standard of review, such that it can now be said with certainty that Murphy v. Carrón is the standard of review in appeals from denial of a motion to intervene of right. See, e.g., Estate of Langhom v. Laws,
But the application of this standard of review does not transform motions to intervene into substantive trials relative to the merits of intervention. Rather, it is still motion practice, and the applicable procedure is set forth in Rule 52.12(c).
With this understanding of our standard of review, we address the merits. Because MJJ’s and Gordon’s claims for intervention are based on differing circumstances, we will evaluate each Appellant’s claim to intervene pursuant to Rule 52.12(a)(2) separately. We address MJJ’s claim first.
In this case, there was some minimal evidence consisting of two affidavits, one each from Appellants and Respondent. Lara Granich stated in her affidavit that she is executive director of MJJ, that as executive director, she is responsible for policy planning and administration of the organization, and that she had contacted attorney Chris Grant on behalf of MJJ and asked him to help with the submission of the ballot initiatives at issue to the Missouri Secretary of State. Granich said she told Grant to use his name and address as the person to whom notices are sent. Gra-nich stated that, after the Secretary of State certified the official ballot titles, MJJ and its volunteers began circulating the petition for signatures. She further indicated that MJJ had paid staff members to help in the process of gathering signatures, and that if Respondent Allred’s challenge to the summary statements was successful, MJJ would be required to expend additional time and money.
In opposition to Appellants’ motion to intervene, Respondent Allred submitted the affidavit of his attorney in the case, Edward D. Greim. Greim stated that he had searched the electronic records of the Missouri Ethics Commission and that he did not discover any reported 2011 expenditures by any political action committees or campaign committees when he conducted a search related to the minimum wage petitions. Greim said that a separate search of expenditures reported by MJJ revealed three “Non-Committee Expenditure Reports” related to the minimum wage petition: (1) $690.69 in “salary and benefits” and “staff time” was reported as expended on November 4, 2011, (2) $49.34 in “salary and benefits” and “staff time” was reported as expended on November 18, 2011, and (3) $18.95 in “staff mileage” and $49.34 in “salary and benefits” and “staff time” was reported as expended on December 2, 2011. Greim further indicated that MJJ was not listed as the campaign committee for the minimum wage petitions. Finally, Greim stated that none of the reports he reviewed referenced any payments made by MJJ to attorney Christopher Grant.
As a preliminary matter, we note that both parties acknowledge that a proponent of an initiative petition generally has a greater interest in the initiative petition than someone, for instance, in Ms. Gordon’s posture as a political supporter and signer of the initiative petitions. This is because a proponent or sponsor will likely have been responsible for drafting the initiative petition, causing it to be filed with the Secretary of State, expending time and money in support of it and the like. MJJ contends that it is a proponent of the initiative petitions, while Respondent argues otherwise, and both devote considerable briefing to whether MJJ is, in fact, a proponent.
There is no statutory or regulatory definition of who is a “proponent” of an initiative petition. And cases referring to “proponents” of initiative petitions do so in a generic sense. See, e.g., Missourian’s Against Human Cloning v. Carnahan,
An interest, for purposes of intervention as of right, “means a concern, more than mere curiosity, or academic or sentimental desire.” In re Liquidation of Prof'l Med. Ins. Co.,
MJJ claims that it has an interest in the underlying action because it instituted and has promoted the Minimum Wage Initiative Petitions. MJJ began the initiative process by contacting its attorney and requesting his assistance in preparing the Minimum Wage Initiative Petitions. MJJ further authorized that attorney to make arrangements for submitting the two initiatives to the Secretary of State.
This is the factual and theoretical basis for MJJ’s claimed interest in the underlying action. It establishes that MJJ has more than just a curious, academic or sentimental interest in the underlying action. MJJ was responsible for submitting the Minimum Wage Initiative Petitions, and it has expended its money, time and volunteer efforts in promoting their success. It thus has a quantifiable interest in the underlying action that was not merely consequential, remote or conjectural and, therefore, satisfied the first element for intervention of right.
Given that MJJ has an interest in the pending litigation, we now turn to whether that interest will be impaired or impeded by the outcome of the underlying § 116.190 action. The second element of intervention requires a showing that, absent intervention, the proposed interve-nor’s “ability to protect his interest will be impaired or impeded as a practical matter” by the disposition of the action. Kinney,
The final element for intervention as of right requires the proposed intervenor to show that “the existing parties are inadequately representing the applicant’s interest.” Am. Tobacco Co.,
With respect to MJJ and the adequate representation prong, Respondent contends that the trial court properly denied MJJ intervention as of right because MJJ’s interests are adequately represented by the State defendants, who, just as MJJ, will be advocating for the current initiative language at trial. See Ring v. Metropolitan St. Louis Sewer Dist.,
As we intimated in Underwood, the fact that two parties are on the same side of the dispute is not enough, in and of itself, to preclude intervention.
Here, as we have seen, MJJ has satisfied the first two requisites for intervention as of right. It has an interest in the underlying action that may be impaired or impeded by the disposition of the case. Therefore, MJJ needs only a “minimal showing” that the representation by the State defendants may be inadequate. See Toombs,
MJJ contends that because the State defendants have little incentive to conduct extensive discovery or present expert testimony, no reason to develop legal strategies and arguments beyond those necessary to defend their institutional interests, no reason to expedite the underlying action, and no necessary reason to appeal an adverse decision that it has provided a minimal showing that its interest might not be adequately represented at trial by the State defendants.
As noted supra, the State defendants have conceded that they take a time-neutral stance as to ballot title litigation. Yet, as explained earlier, because of the May 6th deadline for signatures, ballot initiatives are necessarily a time-sensitive issue. Thus, MJJ’s interest in protecting the effort and expense it has already incurred in supporting the initiatives is best served by a quick resolution of the § 116.190 action. Thus, as a practical matter, there is a divergence of interests between the State defendants’ time neutral view of the proceedings and MJJ’s interest in concluding the litigation at the earliest possible date.
Likewise, other aspects of the State defendants’ representation reflect potential divergence of their interests from those of MJJ. If denied intervention, MJJ cannot conduct discovery in the underlying action nor can it appeal an adverse decision. In that regard, MJJ asserts, and Respondent does not deny, that the State defendants have conducted no discovery in this case and do not intend do so in preparation for trial, even though challenges to a fiscal note typically involve expert testimony. Thus, the State defendants’ trial strategy regarding discovery reflect a significant divergence of interests between MJJ, as one actively pursuing efforts to get the Minimum Wage Initiatives on the ballot, and the State defendants’ interest in performing their legally required duties.
MJJ needed only a minimal showing that there was a divergence of interests between it and the State defendants in order to establish that the State’s representation may be inadequate. Toombs,
While certainly not dispositive, we further note that Missouri courts have routinely allowed organizations that submitted initiative petitions and were actively seeking to have them placed on the ballot to intervene in § 116.190 actions. See Busch v. Carnahan,
MJJ satisfied the three requisite elements of intervention as of right. Consequently, its right to intervene was absolute and could not be denied. McMahon,
Turning to Appellant Gordon’s appeal, unlike MJJ, Gordon claims an interest in the underlying action on the sole basis that she is a signatory of the Minimum Wage Initiative Petitions. As this court recently held in Prentzler v. Carnahan,
In conclusion, the portion of the judgment of the trial court denying MJJ’s motion to intervene is reversed and remanded with instructions to grant MJJ intervention. In all other respects, the judgment of the trial court is affirmed.
Notes
. All statutory citations are to RSMo 2000 unless otherwise noted.
. The case challenging the Minimum Wage Initiative Petitions is Allred v. Carnahan, Case No. 11AC-CC00743.
.An official ballot title consists of a summary statement of the initiative petition and a summary of the initiative's fiscal note. § 116.180. The official ballot title must be attached to the initiative petition as it is circulated for signatures^ 116.010(4).
. Greim’s statement in his affidavit that none of the reports he reviewed referenced any payment made by MJJ to attorney Christopher Grant for his assistance in submitting the petitions to the Secretary of State does not negate or even permit a reasonable inference that MJJ did not seek Grant’s assistance in submitting the petitions, particularly in light of the fact that Grant was listed as co-counsel for MJJ on the pleadings and appeared on behalf of MJJ at the hearing on intervention.
. Appellants’ claim that the hearing on their motion to intervene followed immediately on the heels of the hearing in the combined Prentzler cases where the court stated that it was denying intervention because those seeking to intervene sought to uphold the ballot title and fiscal summary and, therefore, were adequately represented by the State defendants. See Prentzler v. Carnahan,