Author: LegalEase Solutions 

Introduction

You have asked us to research the rights of Missouri citizens to place issues on the ballot for public vote, as well as possible ways in which those citizens may challenge a denial of their initiative by a county official.  These issues require discussion of:

1. Missouri State Constitution and Statutes
2. Missouri state and federal caselaw

Questions Presented

• What rights, if any, do Missouri citizens have to place issues on ballots for public vote?
• Are county officials required to permit ballot initiatives to proceed?
• What methods are available to citizens wishing to challenge denials of their efforts to place issues on general election ballots?

Short Answers

• Missouri recognizes a general right of citizens to referendum and initiative efforts. This, however, is subject to amendment or limitation, depending on the individual county’s form of government and/or county charter rules.  The key inquiry is:  what type of government (charter, township, etc.) characterizes the area affected by the coal burning plant?  If there is a charter in place, it will articulate the rules applied to ballot initiatives (and any available appeals process).

• Whether or not the instant initiative effort must be permitted by the county will depend entirely on the terms of the local charter (Carroll County, and environs). If the county at issue is a non-charter county (perhaps under a township government system), the petitioners will likely succeed in challenging the denial.

• In order to challenge the county’s denial of their petition request, the citizen group may wish to seek a writ of mandamus to compel the county counselor to allow the initiative to proceed to the ballot. If a county charter provides the rules for ballot initiatives, they are controlling.  If the county counselor improperly denied the citizens’ request, they should seek a writ of mandamus in the circuit court to force cooperation.

Discussion

1. General Acceptance of Power of Initiative and Referendum/County Government’s Ability to Limit

 It is a well-established proposition in Missouri that the power of initiative is extended

to matters of local concern “unless some matters are expressly or impliedly excluded from its operation by exceptions contained in the charter” of a city or county.  State ex rel. Powers v Donohue 368 SW2d 432; 1963 Mo. LEXIS 732 (1963).    Article VI of the Missouri Constitution authorizes counties of certain sizes to adopt charters which constitute the framework under which the local government operates, and decides issues of local importance.

Pursuant to Article VI, § 8, of the Missouri Constitution, all counties in the

State of Missouri fall into one of four classifications, depending on their respective assessed economic valuations.    Apart from the classification of counties based on their economic evaluation, a county may operate as a non-charter county or a charter county.  In charter counties, the county commission is authorized and empowered to make decisions relating to county planning and such a county frames its own “constitution” guided by the principles of the state constitution, and ratified by county election. Once it adopts the charter, the county commission has decision-making authority. In the case of a non-charter county the local commission will place county planning issues on the ballot for approval by the electorate.

In cities or counties which have adopted charters or other constitutional forms of government (townships, for example), the charter works to empower the local officials to establish their own rules and regulations.  Typically, such charters include explanations of the procedures and rules by which issues may be placed before voters.  While Missouri as a whole has provided for the ability of citizens to place issues on ballots for vote, local charter provisions will always take precedence, and circumscribe the methods through which that can be accomplished.

Missouri courts appear reluctant to interpret city charters in ways which have the effect of limiting the right to initiative.  In Craighead v City of Jefferson, a citizen group brought an action against the city following a refusal to approve seven initiative petitions for circulation.  The City of Jefferson Charter provided a six-step procedure for the passage of ordinances via initiative petition.  The court found that the charter’s provisions stating that only the city clerk and the city counselor may approve or disapprove any petition “as to form” indicated that the intent of the charter was to aid petitioners in placing matters on the ballot, not to frustrate their purposes permanently.  Id. at 546.

2. Classification of Counties/Impact of Charters

The case of Casper v Heltage 359 SW2d 781, 785; 1962 LEXIS 648 (1962)

provides a good example of the way in which local charters, not broad, statewide pronouncements, often dictate the process for ballot initiatives.  In Casper, the Supreme Court of Missouri held that the Home Rule Charter of St. Louis County effectively provides for local authority to dictate matters of legislative concern, relating to, among other things, public health, police and traffic, building construction, and planning and zoning.  The charter’s provisions were found to be wholly in keeping with the Missouri Constitution which, under Article VI, empowers counties to adopt charters, establish its own rules, and form its own government.  Article VI, § 18 provides that such charters may provide for the vesting of legislative power, and for the methods by which issues of concern are brought to the electorate.

Another form of local government authorized by the Missouri Constitution is that of “township organization”.  Mo. Const. Art. IV, § 9.  § 65.260 R.S. Mo. lists the authorities granted to township governments, and they include the power “to make such orders for the disposition, regulation or use of [the] corporate property as may be conducive to the interest of the inhabitants thereof”.  § 65.350 R.S. Mo. provides that if township governments (board, clerk or other officers) fail to permit citizen appeals when they ought to be permitted, the circuit court may, upon request, issue orders compelling the township official to permit such an appeal.

Again, it is clear that the structure and form of local government in the area in question will largely determine the rights of citizens to seek permission to place issues on public ballots, as well as the recourse they may have in the event those attempts are denied.

3. Writ of Mandamus to Force County Approval of Ballot Initiative

When an initiative has been denied an opportunity to reach the ballot, the existence

and applicability of relevant charter rules must be examined.  If charter rules are available to guide the initiative process, and it appears that they have not been followed by the county official, citizens may seek a writ of mandamus which would order the local official to permit the ballot effort to proceed.  The wording of the charter, if one has been adopted, is crucial.

In State ex rel. Cranfill v. Smith, Mo. Sup. En Banc, 330 Mo. 252, 48 S.W.2d 891, 892, in an original mandamus proceeding for the adoption of an ordinance under the initiative provisions of the Charter of Kansas City seeking to compel the members of the city council to submit an ordinance to the electors of the city the court stated:

In determining whether the writ should be granted or denied, we need not decide whether the provision in the city’s charter for the submission of a proposed ordinance to the electors is mandatory or merely directory, nor are we controlled by the general rule that courts will not inquire into the validity of an act of legislation until after it has become fait accompli and is clothed with the outward forms of law.

Id.  Mandamus should not be considered as a writ of right.  The decision to grant mandamus falls within the sound judicial discretion of the court. Before granting the writ the court will look to the public interest which may be concerned, and act in view of all the existing facts and with due regard to the consequences. And the writ will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act.  Anderson v Smith 377 SW2d 554; 1964 Mo. App. LEXIS 737.

If the citizen group is unable to mount a successful argument for issuance of a writ of mandamus, further options appear to be relatively limited.  Protests alone cannot render charter rules pertaining to ballot initiatives invalid.  Before such rules can be amended, the charter itself would require amendment through public vote.

Conclusion

The Missouri Constitution recognizes the initiative and referendum right of the citizens in legislative matters, and articulates methods through which counties may facilitate exercise of those rights. However, in counties which have adopted charters and/or alternative forms of constitutional government, the precise wording of those charters and pronouncements will be controlling with regard to ballot initiatives and similar efforts on the part of citizens.

If the localities affected by the coal burning plant at issue are subject to county charters or township government, it is essential to look exclusively to those enactments in order to ascertain the procedures for ballot initiative efforts, and whether or not the instant request was improperly denied.  An improper denial of the citizen group’s requests on the part of the county counselor clears the way for the citizens to petition the circuit court for a writ of mandamus, compelling the county counselor to facilitate their petition/ballot drive.