STATE ex rel. Jeremiah W. (Jay) NIXON, Attorney General, Relator, v. Honorable Matt BLUNT, Secretary of State, Respondent.
No. SC 86013.
Supreme Court of Missouri, En Banc.
June 3, 2004.
134 S.W.3d 416
Terry M. Jarrett, Lowell D. Pearson, Office of the Sec. of State, Jefferson City, for Respondent.
PER CURIAM.
The request of the Attorney General for a writ of mandamus against the Secretary of State is denied at this time, without prejudice. The Secretary of State has a duty to take all necessary actions to properly submit Senate Joint Resolution 29 to the voters of Missouri at the August 3, 2004, election.
BACKGROUND
On March 1, 2004, the Missouri Senate passed Senate Joint Resolution 29 (SJR 29), proposing to the voters of Missouri a constitutional amendment to add the following provision to article I of the Constitution of the State of Missouri:
Section 33. That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.
On May 14, 2004, the Missouri House of Representatives took up and passed SJR 29 without amendment. These actions are reflected in the Senate and House journals for those respective dates.
On May 19, 2004, Governor Bob Holden issued a proclamation pursuant to
On May 20, 2004, Attorney General Jay Nixon filed suit in the Cole County Circuit Court seeking to compel the Secretary of State to prepare SJR 29 to be placed upon the ballot for the August 3, 2004, election. The circuit court denied relief on May 21, 2004, holding that the Secretary of State‘s duties under
On May 21, 2004, the Attorney General sought to bring the matter directly to this Court. The request was denied without prejudice. The Attorney General then sought relief in the Court of Appeals, Western District, which was denied on May 24, 2004.
The Attorney General brought the matter again to this Court on May 24, 2004. The Court entered an order on May 25, 2004, allowing the parties to file any amended or supplemental pleadings on or before May 31, 2004, and scheduling oral argument for June 1, 2004. The order also directed the Secretary of State to “be prepared to take all steps necessary promptly to place Senate Joint Resolution 29 on the August 2004 ballot if this Court so orders.”
On May 28, 2004, the presiding officers of the Missouri Senate and House of Representatives signed SJR 29, and the resolution was delivered to and received by the Secretary of State that afternoon. The Secretary of State promptly delivered a copy of the resolution to the State Auditor for the purpose of preparing a fiscal note and fiscal note summary in accordance with
CONTROLLING CONSTITUTIONAL AND STATUTORY AUTHORITY
Constitutional amendments may be proposed at any time by a majority of the members-elect of each house of the general assembly, the vote to be taken by yeas and nays entered on the journal.
All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto at which he may submit any of the amendments.... If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication for four consecutive weeks shall be made....
The original rolls of all laws and joint and concurrent resolutions passed by each general assembly shall, immediately after the passage thereof, be deposited in the office of the secretary of state, and every bill and resolution presented to the governor for his approval, and returned by him to the house in which it originated with his approval thereon, shall, immediately after such return, be deposited by the secretary of the senate, or by the chief clerk of the house, as the case may be, in the office of the secretary of state.
1. Not later than 5:00 p.m. on the tenth Tuesday prior to any election, except a special election to decide an election contest, tie vote or an election to elect seven members to serve on a school board of a district pursuant to
section 162.241, RSMo , or a delay in notification pursuant to subsection 2 of this section, or pursuant to the provisions ofsection 115.599 , the officer or agency calling the election shall notify the election authorities responsible for conducting the election. The notice shall be in writing, shall specify the name of the officer or agency calling the election and shall include a certified copy of the legal notice to be published pursuant to subsection 2 ofsection 115.127 ....2. Except as provided for in
sections 115.247 and115.359 , if there is no additional cost for the printing or reprinting of ballots or if the political subdivision or special district calling for the election agrees to pay any printing or reprinting costs, a political subdivision or special district may, at any time after certification required in subsection 1 of this section, but no later than 5:00 p.m. on the sixth Tuesday before the election, be permitted to make late notification to the election authority pursuant to court order, which, except for good cause shown by the election authority in opposition thereto, shall be freely given upon application by the political subdivision or special district to the circuit court of the area of such subdivision or district. No court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election, except as provided insections 115.361 and115.379 .
If the general assembly adopts a joint resolution proposing a constitutional amendment or a bill without a fiscal note summary, which is to be referred to a vote of the people, after receipt of such resolution or bill the secretary of state shall promptly forward the resolution or bill to the state auditor.
Not later than the tenth Tuesday prior to an election at which a statewide ballot measure is to be voted on, the secretary of state shall send each election authority a certified copy of the legal notice to be published. The legal notice shall include the date and time of the election and a sample ballot.
ANALYSIS
There is no dispute that
The Secretary of State was correct that his statutory duties regarding the placement of any proposed constitutional amendment on the ballot are not finally
SJR 29 was delivered to the Secretary of State on May 28, 2004.
Although the Secretary of State suggests that
No showing has been made that the remaining statutory requirements to place SJR 29 on the August ballot cannot be met. In fact the Secretary of State, the State Auditor, and the Attorney General have all confirmed that they can fulfill their duties in an expedited manner, if necessary.
The Secretary of State cannot exercise the duties of his office in a manner to frustrate the Governor‘s constitutional authority to select the election date for the submission of this question to the people. See, State ex rel. Upchurch v. Blunt, 810 S.W.2d 515 (Mo. banc 1991); Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167 (1956). Nor has the Secretary of State expressly indicated that he would do so. If the Governor properly calls a special election on a proposed constitutional amendment under article XII, section 2, the special election is the only election in which the voters can consider that proposed amendment. The Governor‘s proclamation, pursuant to his constitutional authority, properly designated the election of August 3, 2004, for the voters to consider SJR 29.
The Secretary of State has a duty to take such actions as are necessary, in an expedited manner, to prepare SJR 29 for submission to the people of Missouri at the August 3, 2004, election in accordance with the Governor‘s proclamation. If any further relief is required, Rule 84.22 will be waived, and the action can be brought directly in this Court.
The Attorney General‘s request for a writ of mandamus is denied, without prejudice.
WHITE, C.J., WOLFF, STITH, and TEITELMAN, JJ., concur.
BENTON, J., concurs in separate opinion filed.
PRICE, J., concurs in opinion of BENTON, J.
LIMBAUGH, J., concurs in part and dissents in part in separate opinion filed.
The Constitution authorizes the General Assembly to provide by law how amendments are submitted to the voters.
No court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election, except as provided in sections 115.361 and 115.379.
Section 115.125.2 RSMo Supp.2003.
The legislature enacted this bright line in 2003, in its last review of election laws. H.B. 511, 2003 Mo. Laws 608, enacting 115.125.2 (last sentence). This amendment established the law in Missouri for “last minute” changes to the ballot in response to the general elections in Minnesota and New Jersey in 2002. See also S.B. 29, 2003 Mo. Laws 1207 (introduced Dec. 1, 2002, vetoed July 9, 2003) (legislature would have prohibited courts from ignoring time limits for withdrawal of candidates).
If the acts required by the election law would be completed less than six weeks before the election, I would agree with Judge Limbaugh. However, because the Governor constitutionally called a special election over 10 weeks before the election, because all four statewide officers involved agree that all required acts will be completed more than six weeks before the election, and because local election authorities had notice 10 weeks before the election, I concur in the per curiam opinion.
STEPHEN N. LIMBAUGH, JR., Judge, concurring and dissenting.
I concur in the opinion of the Court that the attorney general‘s request for a writ of mandamus is denied. The Court correctly holds that under
If the general assembly adopts a joint resolution proposing a constitutional amendment or a bill without an official summary statement, which is to be referred to a vote of the people, within 20 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 as the proposed statement....
Under this provision, even if the secretary of state had received the joint resolution immediately upon its final adoption on May 14, the 20-day period would not have run until June 3. In this case, though, whether the secretary of state is or would have been subject to mandamus on May 28, when the resolution was actually received, or 20 days thereafter, or even on June 3, the petition for writ of mandamus is moot because of the inability to meet the May 25th ten-week deadline under
Not later than the tenth Tuesday prior to an election at which a statewide ballot measure is to be voted on, the secretary of state shall send each election authority a certified copy of the legal notice to be published. The legal notice shall include the date and time of the election and a sample ballot.
That brings me to the reason for my dissent. By ordering the secretary of state to proceed with an August 3rd election regardless of the ten-week deadline, the Court effectively renders
At this point, it is helpful to restate the pertinent part of
All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law ... at the next general election, or at a special election called by the governor prior thereto....
Nothing in this provision even vaguely suggests that the delegation of authority to the governor is not otherwise subject to statutory election procedures. In fact, the use of the phrase “as may be provided by law” is a clear delegation of authority to the general assembly to enact the procedures it deems necessary for the orderly conduct of the elections contemplated in section 2(b), and those procedures include the
Tellingly, even the attorney general concedes that
Although additional litigation may ensue challenging the constitutionality of the May 25 deadline in
section 116.240 , that litigation cannot be between these parties—secretary Blunt must abide by all of the statutes and the constitution, and the attorney general will abide by his constitutional duty to defend the secretary and the statutes.
Even now after the May 25 deadline has passed, the attorney general still declines to challenge the statute‘s validity or application and argues only that the secretary should have met the May 25 deadline (though the majority holds otherwise in denying the writ). Ultimately, and unfortunately, the Court does away with the mandate of
I also wish to address Judge Benton‘s position that
Except as provided for in
sections 115.247 and115.359 [provisions not applicable here], if the political subdivision or special district calling for theelection agrees to pay any printing or reprinting costs, a political subdivision or special district may, at any time after certification required in subsection 1 of this section, but no later than 5:00 p.m. on the sixth Tuesday before the election, be permitted to make late notification to the election authority pursuant to court order, which, except for good cause shown by the election authority in opposition thereto, shall be freely given upon application by the political subdivision or special district to the circuit court of the area of such subdivision or district. No court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election, except as provided in sections 115.361 and115.379 . (emphasis added).
The secretary of state makes the plausible argument that the statute must be read as a whole, and when that is done, the last sentence of the statute applies only to elections called by “political subdivisions” and “special districts,” not statewide elections as here. However, assuming, as does Judge Benton, that the last sentence of
Finally, Judge Benton‘s summation requires an additional response. First, though it is true that “the governor called a special election over ten weeks before the election,” the call for election was not made within the statutory timeframe allowed for the secretary of state to act. Second, though it is true that “all four statewide offices involved agree that all required acts will be completed more than six weeks before the election,” the practicality of doing so does not do away with the constitutionally authorized statutory ten-week deadline. Third, though it is true that “local election authorities had notice ten weeks before the election,” that notice was not the statutorily required notice because it did not include a ballot title and sample ballot, which are the very reasons for the notice.
I would sum up the application of
For these reasons, I am unable to join the Court‘s opinion, and I agree only that the sole relief requested, a writ of mandamus, should be denied.