Dotson v. Kander , 464 S.W.3d 190 ( 2015 )

PER CURIAM

This case, raises the issue of whether a challenge to the sufficiency and fairness of a ballot title of a proposed measure may be brought after the measure was adopted by voters. This Court holds that a post-election challenge to ballot titles can be brought under chapter 115.¹ As the ballot title was sufficient and fair, there was no irregularity in the August 5, 2014, election.²

I. Factual Background

Samuel Dotson and Rebecca Morgan challenge the sufficiency and fairness of the ballot title for a proposal modifying the right to bear arms in article I, section 23 of the constitution. This is the second time these parties have come before this Court. For a detailed recitation of the underlying facts, see Dotson v. Kander, 435 S.W.3d 643 (Mo. banc 2014) (Dotson 1). In Dotson I, this Court dismissed the pre-election challenge to the sufficiency and fairness of the ballot title as it was moot under section 115.125.2, RSMo Supp. 2013. Id. at 645. This statute states that “[n]o court shall have the authority to order an individual or issue be placed on the ballot less than six weeks” before an election. The six-week date- had already passed before the trial court.resolved the merits. Dotson I noted that “judicial review of a claim that a given ballot title was unfair or insufficient (when not previously litigated and finally determined) is available in the context of an election contest should the proposal be adopted.” Id. at 645.

Senate Committee Substitute for Senate Joint Resolution 36 (SJR 36) was approved by voters in the August 5, 2014, primary election. Plaintiffs have now filed an election contest in this Court to challenge the summary statement as an election irregularity pursuant to section 115.555.

II. Challenges to Ballot Titles

If the General Assembly writes the ballot title for a measure it proposes to voters, the title must be “a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” Section 116.155.2. The summary statement is limited to 50 words, excluding articles. Id.

Section 116.190, RSMo Supp. 2013, in relevant part, allows any citizen to challenge the official ballot title proposed by the General Assembly before ah election takes place. The challenger must “state the reason or reasons why the summary statement portion of the official ballot title is insufficient or unfair.”³ Section 116.190.3. This section is a procedural safeguard that is “designed to assure that the desirability of the proposed amendment may be best judged by the people in the voting booth.” Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 (Mo. banc 1981). Such challenges are necessary “to prevent a self-serving faction from imposing its will upon the people without their full realization of the effects.” See id. at 11-12 (discussing a challenge to the ballot title of a citizen-proposed amendment). Judicial review of a ballot title is especially important in> a legislature-proposed ballot initiative. This is true because the proponent of the initiative-r-the General Assembly — writes the ballot title as well as the proposed amendment without any review of the ballot title by the executive department.⁴ Compare section 116.025, RSMo Supp. 2013, with section 116.155.

Pre-election review under ■ section 116.190 can be an elusive remedy, however, if there is a relatively short period of time between when the ballot title is certified and when the election is to be held because courts are ..prohibited from adding issues to ballots within, six weeks of an election. See section 115.125.2. Dotson I highlighted this problem: the Dotson I plaintiffs filed their suit on the same day the ballot title was certified, but the six-week deadline for changes prior to an election was 11 days later. See Dotson I, 435 S.W.3d at 644. Because the six-week period passed before the trial court issued a judgment, this Court determined that the case and the appeal were moot. Id. at 645. It was unlikely that both the trial court and appellate judicial review could have been completed within 11 days. See also Cole v. Carnahan, 272 S.W.3d 392, 395 (Mo. App. 2008). Because of the narrow window for judicial review, challengers, due to no delay on their part, were foreclosed from bringing their challenge. This scenario can happen when, as here, the governor places a legislative ballot proposal, that was passed during the preceding legislative session on the August primary ballot.

In contrast to a pre-election challenge under section 116.190, copter 115 allows registered voters to contest “[t]he result of any election-on any question” after an election has been held. Section 115.553.2 (emphasis added). Chapter 115 provides guidelines for posi-election challenges to election results for “irregularities” that occur during elections. See, e.g., section 115.593. This chapter endeavors to ensure that the results of each election are valid.

“Irregularity” is not defined in chapter 115, but courts have considered the violation of election statutes an irregularity that may be addressed in an election contest. Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App. 1995); see Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989). Additionally, section 116.020 states, in relevant part, that “[t]he election procedures contained in chapter 115 shall apply to elections on statewide ballot measures.” As a result, under section 116.020, a challenge to the ballot title of a proposed constitutional amendment may be brought as an irregularity in a post-election action under chapter 115, so long as the issue has not been previously litigated and determined. Dotson I, 435 S.W.3d at 645.

The state posits-several reasons why the plaintiffs cannot challenge the ballot title in a chapter 115 post-election contest. It first argues that chapter 116- is the exclusive means to challenge the ballot title of a proposed constitutional amendment. Although chapter 116 provides a pre-election challenge to a ballot title, there is no statutory indication that it is the only vehicle for such a challenge. In Marre, this Court held that a candidate for office could challenge the qualifications of certain voters in a post-election contest even though there were other statutes that outlined the procedures for pre-election challenges on this issue. 775 S.W.2d at 953; see also United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137,139 (Mo. banc 2000) (rejecting argument that pre-election review under chapter 116 is the exclusive way to challenge an initiative measure); Beatty v. Metro. St. Louis Sewer Dist., 700 S.W.2d 831, 838 (Mo. banc 1985) (“The wording of the proposition on a ballot and the propriety of the notice of election provided [in a special sewer district election] are issues cognizable only in an election contest.”).

The state also argues that the specific timeline for filing a pre-election challenge in section 116.190 should control over the general election contest provisions in chapter 115, relying on Knight v. Carnahan, 282 S.W.3d 9, 20-21 (Mo. App. 2009). Reliance on Knight is misplaced as the issue there was whether the 10-day filing deadline in section 116.190 controlled over the filing deadline in sections 116.120 and 116.200. Knight does not purport to resolve whether a plaintiff may bring a section 116.190 claim under chapter 115. In fact, it notes that this is an open question. 282 S.W.3d at 15-16 (noting that Cole, 2-72 S.W.3d 392 “left open the question of what remedies might be available post-election based on an invalid ballot summary”).

The state’s next contention is that all the “irregularities” referenced in chapter 115 refer to conduct during an election, not the substance of the election provisions themselves. See, e.g., section 115,053.3 (election deputies may “witness and report to the election authority any failure of duty, fraud or irregularity”); 115.107.2, RSMo Supp. 2013 (“Watchers are to observe the counting of the votes and present any complaint of irregularity or law violation”). In support, the state notes that chapter 115 contemplates a court taking evidence of an irregularity, as opposed to making a legal determination regarding the . sufficiency and fairness of a ballot-title. See, e.g., section 115.561 (commissioners have authority to take depositions, compel-attendance and take witness testimony, and compel discovery in election contest).

In this case, this Court appointed a commissioner to take evidence, and the parties submitted a joint stipulation of' facts. While the plaintiffs did not present evidence of particular voters who were misled by the ballot title, this is not fatal to their claim under chapter 115. Rather, the plaintiffs in a post-election ballot title challenge are free to present the evidence they feel is most persuasive, a right available to every party in every case.

In sum, pre-election review, under section 116.190 is not the exclusive vehicle to challenge the language of a'ballot title. A challenge may be brought either before an election under chapter 116 or after an election under chapter 115 if the issue has not been previously litigated and determined. See Dotson I, 435 S.W.3d at 645.

III. The Ballot Title Was Not an Irregularity

In cases in which challenges to the sufficiency of a ballot title are. brought post-election, courts must determine if the bajlot title met the requirements of chapter 116 as there can be no chapter 115 irregularity without an underlying chapter 1Í6 violation of the sufficiency and fairness standard required for ballot titles.

To be sufficient and fair, “the summary statement must be adequate and state the consequences of the initiative without bias, prejudice, deception, Or favoritism.” Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012). The General Assembly should endeavor to promote an informed understanding of the effects of the amendment, and the summary statement should accurately reflect both the legal and probable effects of the proposed initiative. See id. The summary statement should be fair and impartial -so that voters will not be deceived or misled, but it is not necessary for the summary statement to set out every detail of the proposal. Id. at 654, 656.

Courts have noted that, “[i]f charged with the task of preparing the summary statement for a ballot initiative, ten different writers would produce ten. different versions.” . Asher v. Carnahan, 268 S.W.3d 427, 431 (Mo. App. 2008). As such, the test is not whether the .ballot. title, as written,, was the best language, but whether the summary statement fairly and impartially summarizes the purpose of the initiative. See id.

SJR 36 proposed the following changes to Mo. Const, art. I, sec. 23, (new language in bold italics, deleted language struck through):

That the right of every citizen to, keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify--the wearing of--concealed weapons. The rights guaranteed by this sectioii shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to. be a danger to self or others as result of a mental disorder or mental infirmity.

The summary statement of the ballot title asked voters:

Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to- uphold that right? .

A. Provisions Not Addressed in the Summary Statement

Plaintiffs first' argue that the summary statement was insufficient and unfair in that it omitted three key points of the amendment: (1) the application of strict scrutiny; (2) the deletion of the phrase “but this shall not justify the wearing of concealed weapons” from the provision; and (3) the addition of the protection to ammunition and accessories. Although the summary does not include every change in the proposal, these omissions do not render the ballot summary insufficient or unfair as they were not central features of the amendment. See United Gamefowl Breeders, 19 S.W.3d at 141 (the ballot summary need not set out all details of the proposal to be sufficient and fair); Brown, 370 S.W.3d at 656 (further clarifying amendment would make ballot summary more accurate but was not required).

1. Strict Scrutiny Provision

Plaintiffs argue that the summary statement was misleading for failing to disclose that the amendment would require courts to examine statutes affecting the right to bear arms under strict scrutiny. They contend that this is a “significant change” because neither the Supreme Court of the United States nor this Court has explicitly stated what level of scrutiny should apply to the right to bear arms. See District of Columbia v. Heller, 554 U.S. 570, 595, 628-29, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (declaring the right to bear arms is a fundamental right but declining to specify a particular level of scrutiny); State v. Richard, 298 S.W.3d 529, 531-33 (Mo. banc 2009) (no particular level of scrutiny identi-fled in analyzing a statutory prohibition against possessing a loaded firearm while intoxicated). This Court disagrees.

“Strict scrutiny” is a legal phrase of art grounded in decisions of the Supreme Court of the United States. It is used when legislation affects a fundamental right. Etling v. Westport Heating & Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003). Considered the “most rigorous and exacting standard of constitutional review,” strict scrutiny is generally satisfied only if the law at issue is “narrowly tailored to achieve a compelling interest.” Miller v. Johnson, 515 U.S. 900, 920, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).

It is true that neither the Supreme Court of the United States nor this Court has delineated a level of scrutiny for the right to the bear arms. Furthermore, there is no settled analysis as to how strict scrutiny applies to laws affecting the fundamental right to bear arms, which has historically been interpreted to have accepted limitations. Heller, 554 U.S. at 626-27,128 S.Ct. 2783.

That strict scrutiny applies “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying” the standard. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 230, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The nuances of how strict scrutiny applies depending on the right involved demonstrates that SJR 36 did not change the law affecting the right to bear arms but- established a broader guideline indicating how laws affecting the right to'bear arms should be scrutinized.⁵

This is illustrated by other state courts that have upheld gun regulations under strict scrutiny. For example,. Louisiana amended article I, section 11 of the Louisiana Constitution in 2012:

The right' of each citizen to keep and bear arms is fundamental and shall not be abridged infringed, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed-on--the person.. Any restriction on this right shall be subject to strict scrutiny.

2012 La. Sess. Law Serv. Act 874 (S.B. 303) (West). In the wake of this amendment, the Louisiana Supreme" Court recognized that- “the right to bear arms has always been fundamental” and that the “stated intention” of the améndment was “to secure and- protect Louisiana citizens’ right to bear arms under the Louisiana Constitution from possible future judicial or legislative erosion.” State v, Eberhardt, 145 So.3d 377, 383 & n.3 (La. 2014).

Since the amendment was adopted, that court has applied a strict scrutiny test but upheld several laws regulating the possession of firearms, including a felon-in-possession law, a conceal-carry law, and a minor-in-possession law. Id. at 385 (applying strict scrutiny and upholding a felon-in-possession statute with a 10-year limit); In re J.M., 144 So.3d 853, 863, 866 (La. 2014) (applying strict scrutiny and upholding laws prohibiting carrying concealed weapons without a permit and prohibiting minors from possessing handguns in certain circumstances); State v. Webb, 144 So,3d 971, 979, 983 (La. 2014) (applying strict scrutiny and upholding a law banning possession of a firearm while engaged in drug use and distribution); State v. Draughter, 130 So.3d 855, 868 (La. 2013) (applying strict scrutiny and Upholding a felon-in-possession law as applied to offenders remaining under the supervision of the Louisiana department of corrections).

These cases, although not binding on this Court, demonstrate the addition of strict scrutiny to the constitution does not mean that laws regulating the right to bear arms are presumptively invalid as the dissent suggests. Sep. op. at 4. The right to bear arms “is not unlimited” and there are still “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of 'firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”⁶ Heller, 554 U.S. at 626-27,128 S.Ct. 2783.

2. Concealed Weapon Provision ■ ■

Plaintiffs next argue that the summary statement needed to address the deletion of the phrase “but this shall not justify the wearing of concealed weapons” from article I, section 23. It was not necessary to include this deletion in the summary statement as .the legislature continues to have the authority to regulate concealed weapons just as they did prior to the amendment. Deletion of this,language clarified that the right to wear concealed weapons is subject to the same legislative restrictions that the General Assembly may place on the right to bear arms generally, which is consistent with this Court’s previous interpretation of the deleted language:

[I]t means simply that the constitutional right does not extend to the carrying of concealed weapons. .... [not] that the General Assembly is prohibited from enacting statutes allowing or. disallowing the practice....

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... [T]he General Assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, has the final say in the use and regulation of concealed weapons.

Brooks v. State, 128 S.W.3d 844, 847 (Mo. banc 2004) (citation omitted).

The dissent asserts that there is now an “open question” about whether article I, section 23 confers a right to wear concealed weapons. Sep. op. at 218. This Court’s holding in Brooks that the legislature may regulate concealed weapons remains consistent with the text of article I, section 23. See also Heller, 554 U.S. at 626, 128 S.Ct. 2783 (noting, that, historically, the Second Amendment has not prohibited states from regulating concealed weapons). As this deletion did not change the current law regarding concealed weapon regulations, it did not need to be included in the summary statement.

3. Ammunition and Accessories Provision

Finally, the ballot title is not insufficient or unfair for failure to note the addition of language making it clear that the right established in article 1, section 23, extends not only to guns but to ammunition and accessories as well, as “arms” could include ammunition. See, e.g., Web-stee’s ThiRd New Int’l DictionaRY 118 (1993) (defining “arms” as “a means of offense or defense: WEAPON”). Whatever practical difference the addition of the phrase “ammunition or accessories” may have, it is not so material that a failure to note this addition renders the ballot title insufficient or unfair. Additionally, this provision follows from Heller, which invalidated a law that required making a handgun inoperable in the home. 554 U.S. at 635,128 S.Ct. 2783.

B. Provisions Included in the Summary Statement

Plaintiffs next argue that the ballot summary was misleading to voters by asking whether the constitution should be amended “to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right” because they contend the word “include” implies that the previous version of the constitution did not contain the right to bear arms and that the state was not previously obligated to uphold this right. They rely on Missouri Municipal League v. Carnahan, 303 S.W.3d 573, 589 (Mo. App. 2010), in which the court -of appeals found a ballot summary unfair when it asked, in relevant part, if the constitution should be restricted to require that the government pay a landowner just compensation if the government .takes the landowner’s property. The court held this language implied just compensation was a new addition to the constitution when, in fact, it had always been required. Id. at 588.

Missouri Municipal League is inappo-site to This case, however, because the ballot title in SJR- 36 does not imply that the constitution does not currently include a right to bear arms. Rather,’ it asks whether the constitution should include a “declaration” and that the declaration will have two parts: (1) that the right to keep and bear arms is unalienable;. and, (2) that the government is obligated to uphold that right. Before the amendment was adopted, there was no such declaration in the constitution. As the ballot tifie asks whether the constitution should be amended to include these declarations, this was not misleading. Additionally, it poses the question whether “the right” to keep and bear arms should be declared unalienable. By using “the” before “right,” the ballot title indicates it is amending a preexisting right.

Plaintiffs further argue that the ballot title misled 'voters by implying that the right to bear arms was not currently unalienable even though the constitution, at the time, stated the right to bear arms “shall not be questioned.” They similarly, contend the state, was ■ already obligated to uphold the right to bear arms,- so this addition was unnecessary. These arguments fail because, as explained above, the central purpose of the amendment to article I, section 23, is not to change the right to bear arms, but to make certain “declarations” about that right. For that reason, the fact that this right is “fundamental” from a legal perspective does not mean that it is improper for the voters to add a declaration that the right is “unalienable.” Similarly, the fact that the state always has had the obligation to uphold and protect this right together with the rest of the constitution does not mean that is improper for the voters to add a declaration that this is so. • ■'

IV. Conclusion

Because the ballot title’s description of the declarations added is sufficient and fair, plaintiffs have not shown an election irregularity under chapter 115.

Russell, C.J., Breckenridge and Wilson, JJ., concur; • • . Fischer, J., concurs in separate opinion filed;-’ Stith, J., concurs in result in separate opinion filed; Teitelman, J., dissents in part and concurs in part in separate opinion filed; Draper, J., concurs in part in opinion of Stith,,J., and concurs in strict scrutiny analysis in opinion of Teitelman, J.

1 . All statutory references are to RSMo 2000 unless otherwise noted.

2 . This Court has jurisdiction to hear this case pursuant to Mo. Const, art. VII, sec. 5 and section 115.555. See Gantt v. Brown, 244 Mo. 271, 149 S.W. 644, 646 (1912).

3 . Under section 116,155.2, the General Assembly is required to write a “true and impartial statement of the purposes of the proposed measure." In contrast, a citizen who challenges the ballot title must state why the summary statement is "insufficient or unfair” under section 116.190, RSMo Supp. 2013. While this- Court has yet to examine in what ways these standards may differ, the challengers claim that the summary statement in SJR 36 was insufficient and unfair in that it did not meet the standards of section 116.155.

4 . In contrast, the'ballot summary of a citizen-proposed initiative petition is written by the secretary of state and reviewed by die attorney general. See section 116.025, RSMo Supp. 2013.

5 . Even though SJR 36 set out strict scrutiny as the standard, that standard would already have been applicable to cases where the legislation was challenged based on article I, section 23 of the Missouri Constitution after McDonald. v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Although the Supreme Court of the United States did not announce a level of judicial scrutiny in Heller, it held in McDonald that the right to bear arms is a fundamental right that applies to the states. 561. U.S. at 791, 130 S.Ct. 3020. Because this Court reviews laws affecting fundamental rights trader the strict scrutiny standard, Etling v. Westport Heating & Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003), strict scrutiny would have applied under the Missouri constitution had a challenge been made. By declaring the right to bear arms “unalienable” and imposing strict scrutiny, SJR 36 could be understood to be nothing more than a declaration of the law as it would have been declared by this Court after McDonald mandated that the -fundamental right to bear arms applied to the states. The legislator-intervenors argue in their brief that "the declaration in the ballot measure that ‘[a]ny restriction on these rights shall be subject to strict scrutiny’ was nothing more than a declaration of the law as it clearly stood in the wake of McDonald.” Br. of Intervenors Kurt Schaefer and Missourians Protecting the 2nd Amendment, at *23. ■- ■<

6 . The dissent argues that the addition of the phrase "[n]othiihg in this section shall bé con- ■ strued to prevent the general assembly from ' enacting general laws which limit the rights of convicted violent felons” will allow a nonviolent felon to have "the same individual state constitutional right to keep and bear arms as any other lifelong- law-abiding citizen.” Sep. op. at 219'. The fact that violent felons are named does not necessarily increase the rights of nonviolent felons, a restriction clearly noted in Heller, 554 U.S; at 626-27, 128 S.Ct. 2783.