Missouri Supreme Court Invalidates Legislature’s Attempt to Limit Effect of Ballot Initiative Prior to Enactment

March 4, 2015

The Missouri Supreme Court recently held that, once a ballot initiative has been accepted for placement on the ballot, the General Assembly cannot preemptively limit its effect before it is approved by the voters. According to the Court, once approved, the ballot initiative is controlling and repeals any inconsistent law previously passed by the legislature.

In May 2008, a ballot initiative known as Proposition C was approved for placement on the 2008 general election ballot. Proposition C proposed, among other things, to require investor-owned utility companies to generate or purchase two percent of their renewable energy from solar power and to provide customers with a rebate for certain new or expanded solar electric systems. In May 2008, after Proposition C was certified for placement on the ballot but before the November 2008 election, the General Assembly passed a law that excused one electric company—Empire District Electric Company—from the two-percent-solar energy-production and rebate requirements, "notwithstanding any other provision of law." In the November 2008 general election, Proposition C passed with more than 66 percent of the vote.

In Earth Island Institute v. Union Electric Co., No. SC93944, — S.W.3d — (Mo. banc Feb. 10, 2015), the Missouri Supreme Court reversed a decision by the Public Service Commission that the two statutory provisions—the provision passed by legislature and the ballot initiative—could be harmonized. The Court held that the two statutory provisions were irreconcilable and the ballot initiative effectively repealed the earlier-enacted legislative pronouncement. The Court found the timeline of events problematic, stating that "[t]o the extent that a statute, enacted after an initiative is approved for circulation but prior to its passage, limits the effect of the later-adopted initiative, the statute is impliedly repealed." The Court reasoned that "[s]uch unilateral, preemptive action by the legislature [would] serve[] as an end run around the constitutionally protected right of the people of Missouri to enact legislation by ballot initiative."

The Court conceded that had the situation been different—e.g., if the legislation were passed after the ballot initiative was adopted or if both provisions were legislatively enacted—the two statutory provisions could be harmonized and the exemption for Empire District Electric Company would not have been impliedly repealed. The Court also affirmed that the legislature is not prohibited from passing laws on subjects related to approved ballot initiatives before the initiatives have an opportunity to face a public vote. But according to the Court, the legislature cannot "render meaningless the people's right to adopt a law by initiative" by "preemptively modify[ing] the initiative" "before [it] could ever be voted on."

The Supreme Court's decision in Earth Island Institute could have far-reaching effects. Over the last 10 years, ballet initiatives have been instituted on such diverse issues as taxes, labor unions, tobacco, gambling, marriage, scientific research, law enforcement, religion, agriculture, firearms, the lottery, civil rights, pensions, minimum wage, water, healthcare, energy, animals, the judiciary, and criminal trials, to name a few. In light of the Supreme Court's decision, individuals or entities faced with an unfavorable ballot initiative should consult with an experienced attorney to discuss how best to navigate the complex issues associated with ballot initiatives and legislative power.

Lewis Rice has an extensive appellate litigation practice. The Firm's attorneys have prosecuted and defended appeals in state appellate courts throughout Missouri and Illinois and in federal courts nationwide.


Throughout our Firm's history, Lewis Rice attorneys have made excellence the foundation of our practice. Founded in 1909, more than a century of service has given us the experience, resources and tools to serve our clients' dynamic needs. Our diverse team of more than 150 attorneys provides counsel and solutions for the challenges facing local, regional and national businesses, as well as individuals and families. Lewis Rice maintains offices in downtown St. Louis, suburban Town & Country and Washington, Missouri and Edwardsville, Illinois. We also have offices in downtown Kansas City, Missouri and suburban Overland Park, Kansas.

Firm Highlights
Client Alert

Supreme Court Limits Ability to Compel Access to Private Property Without Compensation

More
Client Alert

First-Issued Interim Final Rule Gives Guidance on No Surprises Act

More
News

Lauren R. Carey Creates New Blog for Social Media Influencers

More
Client Alert

Missouri Now Requires Employers to Provide Leave and Accommodations for Victims of Domestic and Sexual Violence

More
Client Alert

OSHA’s New Guidance Regarding Indoor Mask Wearing, COVID-19 Vaccination Mandates, Regular Testing of Unvaccinated Workers, and More

More
News

61 Lewis Rice Attorneys Named Best Lawyers for 2022, 16 Named Ones to Watch

More
Client Alert

FTC Reverses Course on Treatment of Debt Payoff Under HSR Act

More
Client Alert

Property Owners Can Push the Issue Under Illinois Mechanic’s Lien Law

More
News

David W. Sweeney Represents Advantes Group in $7.2 Million Apartment Project

More
News

Michael D. Mulligan Publishes Article in ACTEC Law Journal Comparing Sales to an Intentionally Defective Irrevocable Trust and a to Beneficiary Intentionally Defective Irrevocable Trust

More
News

Lewis Rice Wins $1.5 Million in Compensation for Covington Landowners

More
News

Neal F. Perryman Named to Missouri’s POWER List in Employment Law by Missouri Lawyers Media

More
News

Brian P. Pezza Quoted in SHRM Articles on Employee Vaccination Status Disclosure and Employer Vaccination Policies

More
News

John C. Bodnar Named BTI M&A Client Service All-Star

More
News

Michael R. Thiessen Recognized as Pro Bono Spotlight by KCMBF for August

More
Client Alert

FTC Adds Teeth to the ‘Made in USA’ Rule

More
News

Lewis Rice Recognized as Top M&A Firm by BTI Consulting Group

More
Diversity & Inclusion

Golf Foundation of Missouri Awards First Larry L. Deskins, Sr. Scholarship

More
News

Claims Filed for Compensation in North Carolina Ecusta Trail Rail-to-Trail Case

More
News

Four Lewis Rice Attorneys Named 2022 “Lawyer of the Year” by Best Lawyers

More