The Missouri Supreme Court on Friday threw out a law passed last year to keep politicians in control of writing ballot summaries and give the attorney general extraordinary appeal power.
The bill was changed too much during its path through the General Assembly, Chief Justice W. Brent Powell wrote in the unanimous opinion. The changes, he wrote, violated the Missouri Constitution’s requirement that amendments should not change the original purpose of legislation.
The original bill contained one section intended to prevent the courts from rewriting ballot language for measures referred to voters by the General Assembly. By the time it was passed, it changed five sections of state law, completely revising the process for court challenges to ballot summaries and granting the attorney general authority to appeal preliminary injunctions preventing enforcement of state laws or regulations in any field.
In arguments on Jan.7, Deputy Solicitor General Samuel Freedlund tried to convince the judges that changes to how ballot summary cases are managed are germane to the attorney general’s appeal power because the bill, from the start, was designed to amend the process for judicial review of state laws.
“This argument stretches the boundaries of logic,” Powell wrote.
The court considered allowing the changes to ballot title cases to remain in effect, which was the result when Cole County Circuit Judge Danel Green ruled in September. Green found that the original purpose of the bill had not been improperly changed but there was no legal basis for allowing the attorney general’s office to have special appeal power.
The Supreme Court considered whether the bill would have passed absent the provisions for the attorney general, Powell wrote.
“While it remains possible the General Assembly would have passed (the law) without the amendment…this mere possibility is not enough for this court to save the non-offending provisions (the law),” he wrote.
The decision restates what lawmakers should have known when they passed the bill because what is and is not allowed procedurally has been argued repeatedly in court, attorney Chuck Hatfield said.
Hatfield represented Sean Nicholson, who sued in part because the new ballot summary process is more expensive and creates delays for ballot initiatives
“Every few years, the Supreme Court needs to remind the Legislature that they have to follow the procedural requirements of the Constitution when they pass a bill,” Hatfield said. “It’s not that hard. They need to vote on things separately.”
The ballot summary provisions of the law were written to take revisions out of the hands of the courts. In lawsuits during 2023 and early 2024, the courts rewrote the language for the abortion rights initiative petition, finding the original version written by then-Secretary of State Jay Ashcroft “replete with politically partisan language.”
Instead of a judge making changes when summaries are deemed unfair or biased, the law gave the secretary of state three chances to make revisions.
The law was used last year during a challenge to the summary of a proposal to reinstate Missouri’s almost-total ban on abortions. Cole County Circuit Judge Daniel Green approved a summary from Secretary of State Denny Hoskins after rejecting two previous versions, but that decision was overturned at the Western District Court of Appeals, which issued its own revision.
By throwing out the law, the judges put revisions to a referendum on Missouri’s gerrymandered redistricting plan into the hands of Cole County Circuit Judge Brian Stumpe. Hoskins has already admitted in court through his attorneys that the ballot summary “is close to the line of being inherently argumentative.”
In the effort to save the law, Freedlund during oral arguments asked the court to reject the lawsuit entirely. Nicholson is not working for any initiative campaign engaged in litigation over a ballot title and therefore had no injury, he contended.
And there is no standing, or right to sue, for anyone to challenge the appeal power because it involved no new expense for the state, he argued.
The court did not address the first argument and rejected the second. While in many cases a challenge could not be sustained if the only expense is for state employees who would be paid a salary anyway, this case is different, Powell wrote.
Lawmakers added the appeal power to the bill specifically to allow the attorney general to challenge a preliminary injunction in the court battle over abortion rights playing out in Kansas City.
Planned Parenthood and the ACLU of Missouri are suing the state over laws and regulations that prevented Missourians from immediately accessing abortion following the passage of an abortion rights amendment in 2024.
Jackson County Judge Jerri Zhang found some of the regulations to be unconstitutional under the new abortion rights law and issued two preliminary injunctions.
Immediately after the bill was signed, Bailey used the new authority to file appeals that were ultimately unsuccessful. Those filings, Powell wrote, are a use of state funds that would not have been made absent the new legal authority.
“In connection with the attorney general’s appeal of a preliminary injunction filed after passage of (the law), tax dollars necessarily have been spent on the pursuit of that appeal when no appeal was previously allowed,” Powell wrote. “This expenditure establishes taxpayer spending.”
The decision helps clarify when a lawsuit challenging a new law or regulation can be filed, Hatfield said.
“That’s somewhat helpful,” he said, “to those of us who worry about this kind of thing.”
This story was originally published by the Missouri Independent.
