STATE OF MISSOURI EX REL. DR. ANNA FITZ-JAMES, Respondent, v. ANDREW BAILEY, IN HIS OFFICIAL CAPACITY, Appellant, and SCOTT FITZPATRICK, et al. Respondents.
No. SC100132
SUPREME COURT OF MISSOURI en banc
Opinion issued July 20, 2023
Dr. Anna Fitz-James (“Fitz-James”) filed a petition in the circuit court of Cole
Nothing in
Background
In March 2023, pursuant to the statutory requirements of
Upon receiving the proposed petitions from the Secretary, the Auditor solicited input from 60 state and local governmental entities regarding estimated costs or savings, if any, of each proposed initiative.
The Department of Social Services, Department of Mental Health, and Department of Health and Senior Services indicated they anticipated no fiscal impact, other than unknown impact related to federal regulations. No other state department, nor the Attorney General, provided a response indicating any of the initiatives
The Auditor then created a fiscal note, which recorded the responses received, and a fiscal note summary for each of the proposed petitions3 and, on March 29, sent these documents to the Attorney General as required by
On April 10, the Attorney General notified the Auditor that he believed the “legal content” of each fiscal note and summary was deficient and returned the notes and summaries to the Auditor. The Attorney General stated the fiscal notes were deficient because they contained “inadequate and divergent submissions” from government entities regarding the fiscal impact of the proposed initiatives. The Attorney General also noted that he believed the fiscal note summaries were deficient because they: (1) did not accurately represent the true cost of the proposed measures to local and state government entities (because the fiscal notes did not do so), and (2) failed to adequately summarize the submissions the Auditor received regarding the potential loss of federal funding due to the proposed initiatives.
The Auditor disagreed and, on April 21, resubmitted the original fiscal notes and fiscal note summaries to the Attorney General. The Auditor informed the Attorney General that the fiscal notes and summaries complied with the requirements set forth in chapter 116 and that the Attorney General exceeded his review authority under
Because of this logjam, the Secretary could not – and, to this day, cannot – complete his duty by certifying the official ballot titles for the proposed petitions. The ballot title is comprised of two parts: a “summary statement” and the fiscal note summary.
Fitz-James is unable to move forward until this issue is resolved.
To break this impasse, Fitz-James filed a petition in the Cole County circuit court on May 4 seeking a writ of mandamus to compel the Attorney General to perform his duty under
On May 17, the circuit court entered preliminary writs directing the Attorney General, the Secretary, and the Auditor to file responsive pleadings to Fitz-James’s petition for mandamus.5 After briefing and argument, the circuit court entered judgment making the writ of mandamus permanent against the Attorney General and ordering him to approve the Auditor’s fiscal note summaries and notify the Auditor of that approval. The Attorney General timely appealed the circuit court’s judgment to this Court.
Standard of Review
In a bench-tried case, this Court “must sustain the decree or judgment of the [circuit] 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.” BG Olive & Graeser, LLC v. City of Creve Coeur, 658 S.W.3d 44, 46 (Mo. banc 2022) (alteration in the original) (internal quotation marks omitted). “Questions of law, including matters of statutory interpretation, are reviewed de novo.” Id. (internal quotation marks omitted).
“The goal of statutory interpretation is to give effect to the General Assembly’s intent as reflected in the plain language of the statute at issue.” Mo. State Conf. of NAACP v. State, 607 S.W.3d 728, 732 (Mo. banc 2020) (internal quotation marks omitted). “The primary rule of statutory construction is to ascertain the intent of the legislature from the language used and to give effect to that intent if possible.” Id. (alterations and internal quotation marks omitted). “This Court does so by considering the words used in their plain and ordinary meaning.” Id. (alterations and internal quotation marks omitted). Additionally, this Court has held that the “construction of a statutory scheme should avoid unreasonable or absurd results.” MacColl v. Mo. State Highway Patrol, 665 S.W.3d 290, 297 (Mo. banc 2023) (internal quotation marks omitted).
This case is not about the substance of Fitz-James’s proposed initiatives petitions, nor is it about the fiscal impact of those proposals. Rather, this case is about which state official is authorized to estimate and summarize that fiscal impact.
Chapter 116 sets out the procedures for approving an initiative petition for circulation. First, the proponent submits a sample petition sheet to the Secretary.
At issue in this case is
- Except as provided in
section 116.155 , upon receipt from the secretary of state’s office of any petition sample sheet, joint resolution or bill, the auditor shall assess the fiscal impact of the proposed measure. The state auditor may consult with the state departments, local government entities, the general assembly and others with knowledge pertinent to the cost of the proposal. Proponents or opponents of any proposed measure may submit to the state auditor a proposed statement of fiscal impact estimating the cost of the proposal in a manner consistent with the standards of the governmental accounting standards board andsection 23.140 , provided that all such proposals are received by the state auditor within ten days of his or her receipt of the proposed measure from the secretary of state. - Within twenty days of receipt of a petition sample sheet, joint resolution or bill from the secretary of state, the state auditor shall prepare a fiscal note and a fiscal note summary for the proposed measure and forward both to the attorney general.
- The fiscal note and fiscal note summary shall state the measure’s estimated cost or savings, if any, to state or local governmental entities. The fiscal note summary shall contain no more than fifty words, excluding articles, which
shall summarize the fiscal note in language neither argumentative nor likely to create prejudice either for or against the proposed measure. - The attorney general shall, within ten days of receipt of the fiscal note and the fiscal note summary, approve the legal content and form of the fiscal note summary prepared by the state auditor and shall forward notice of such approval to the state auditor.
- If the attorney general or the circuit court of Cole County determines that the fiscal note or the fiscal note summary does not satisfy the requirements of this section, the fiscal note and the fiscal note summary shall be returned to the auditor for revision. A fiscal note or fiscal note summary that does not satisfy the requirements of this section also shall not satisfy the requirements of
section 116.180 .
The first subsection of this statute plainly and unequivocally assigns to the Auditor – not the Attorney General – the task of assessing the fiscal impact of the proposed measure. The remainder of subsection 1 identifies the sources the Auditor may draw upon and permits proponents and opponents of the measure to submit their views regarding the measure’s fiscal impact. Subsection 2 requires the Auditor to present his assessment in the form of a fiscal note and a summary of that fiscal note and send both documents to the Attorney General so he can review their “legal content and form.”
Subsection 3 sets out the only “legal content and form requirements” for fiscal notes and fiscal note summaries, i.e., (1) that both “shall state the measure’s estimated cost or savings, if any, to state or local governmental entities,” (2) that the summary shall contain no more than 50 words, excluding articles, and (3) that the summary “shall summarize the fiscal note in language neither argumentative nor likely to create prejudice either for or against the proposed measure.”
Subsection 4 lies at the heart of this case. It provides that the Attorney General “shall, within ten days of receipt of the fiscal note and the fiscal note summary, approve the legal content and form of the fiscal note summary prepared by the state auditor[.]” This subsection does not require, or even authorize, the Attorney General to approve the “legal content and form” of the fiscal note, only the fiscal note summary. And, as noted above, subsection 3 sets out the only “legal content and form” requirements with which the Attorney General is to concern himself. Here, the Attorney General fails to show the Auditor’s fiscal note summaries do not comply with any of the “legal content and form” requirements in subsection 3, and the circuit court correctly found those requirements were met.
The Attorney General first argues the “legal content” of the fiscal notes is deficient because they rely on a small pool of inadequate responses from local and state entities that underestimate the cost of the proposed measures. This argument concerns only the fiscal note, however, and nothing in
Even if the Attorney General were authorized to approve the “legal content and form” of the fiscal notes, his argument extends well beyond the “legal content and form” requirements set out in
The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure. This characterization is misleading. The Attorney General nowhere identifies any of the Auditor’s language the Attorney General claims is argumentative or prejudicial. Instead, he claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under
The prohibition in
Here, the Attorney General does not claim that the fiscal notes or the summaries fail to address the Auditor’s estimate of the proposals’ cost or savings, or that they also address other topics. The Attorney General does not claim the summaries exceed the 50-word limit. And, finally, the Attorney General does not claim that the summaries do not summarize the fiscal notes or point to any language in the summaries that is argumentative or prejudicial. Accordingly, the circuit court did not err in holding the Attorney General had only a ministerial duty to approve the “legal content and form” of the fiscal note summaries and convey that approval to the
The Attorney General also claims that, whenever (and for whatever reasons) he rejects and returns to the Auditor a fiscal note or fiscal note summary, the Auditor has no alternative under
Instead, subsection 5 states the Auditor can be compelled to make revisions whenever the Attorney General or the circuit court of Cole County makes such a determination.
Finally, the Attorney General argues the circuit court erred because mandamus was not an appropriate remedy. He argues mandamus was inappropriate because Fitz-James had adequate remedies at law and because the Attorney General’s duties under
The Attorney General first argues mandamus was inappropriate because Fitz-James also sought a declaratory judgment in her petition in the circuit court. The Attorney General points to this Court’s statement in State ex rel. Kelley v. Mitchell that “mandamus does not issue where there is another adequate remedy available to relator,” and argues that Fitz-James’s prayer for a declaratory judgment is such an adequate remedy. 595 S.W.2d 261, 265 (Mo. banc 1980). But the Attorney General pulls that statement out of context. In Kelley, the relators first sought a declaratory judgment that a salary increase for the board of election commissioners ran afoul of section 115.049.3, RSMo 1978. Id. at 263. The next day, the relators in Kelley filed a petition for a writ of mandamus. Id. In holding mandamus relief was not appropriate in that case, this Court noted there was “no reason to doubt that the relators would be able to receive full, prompt and adequate relief in the declaratory judgment action.” Id. at 267. This Court has since distinguished Kelley, however, and said “mandamus is an appropriate remedy when alternative remedies waste judicial resources or result in a burdensome delay, creating irreparable harm to the parties.” State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 806 (Mo. banc 2015).
Here, even though Fitz-James asked for the circuit court to issue a declaratory judgment in her petition as an alternative to a writ of mandamus in Count I of her petition, a declaratory judgment would not have afforded her full, prompt, and adequate relief. The additional delay in establishing, and then likely having to enforce, a declaratory judgment would be burdensome and result in further harm to Fitz-James. Until the official ballot title is certified – a critical step being held up solely by the Attorney General’s unjustified refusal to act – Fitz-James cannot challenge that title in circuit court or circulate her petitions. Fitz-James’s constitutional right of initiative petition is being obstructed, and the deadline for submitting signed petitions draws nearer every day. Accordingly, mandamus is an appropriate remedy to prevent further harm to Fitz-James.
The Attorney General also is incorrect in asserting mandamus is inappropriate because his duties under
As discussed above,
As explained above, the circuit court did not err in finding the fiscal notes and fiscal note summaries for Fitz-James’s proposed petitions complied with the “legal content and form” requirements in
performance of a particular act by one who has an unequivocal duty to perform the act”). Therefore, the circuit court did not err in making permanent its writ of mandamus compelling the Attorney General to approve the fiscal note summaries and provide notice of that approval to the Auditor.
Conclusion
This Court has often repeated the importance of the right to initiative enshrined in the Missouri Constitution:
Nothing in our constitution so closely models participatory democracy in its
pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from who all constitutional authority is derived, have reserved the “power to propose and enact or reject laws and amendments to the Constitution.”
Brown, 370 S.W.3d at 645 (quoting Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990)). For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.” United Lab Comm. of Mo. v. Kirkpatrick, 572 S.W.2d 449, 454 (Mo. banc 1978). If technical formalities cannot stand in the way, a failure to perform a clear and unequivocal duty must not be allowed to do so either. If the Attorney General had complied with his duty to approve the Auditor’s fiscal note summaries in the time prescribed by section
For the reasons set for above, the circuit court’s judgment is affirmed.10
Paul C. Wilson, Judge
Russell, C.J., Powell, Breckenridge, Fischer, and Ransom, JJ. concur; Draper, J., not participating.