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 The Court held that the two statutory provisions were irreconcilable and the ballot initiative effectively repealed the earlier-enacted legislative pronouncement.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for circulation but prior to its passage, limits the effect of the later-adopted initiative, the statute is impliedly repealed."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.

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