Legal Update: The Missouri State NAACP & Ward Connerly's Anti-Affirmative Action initiative

Ward Connerly and his "Civil Rights" institute have been traveling the country trying to end Affirmative Action programs. Currently, he is attempting to place measures on the ballot in Missouri, Colorado, Oklahoma, Nebraska, and Arizona.

Connerly uses ballot petitions to amend State constitutions using misleading language and evoking Civil Rights imagery. The language he is attempting to amend into the Missouri constitution reads:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting"

To place the language on Missouri's ballot in November '08, Connerly has until May 4th, to gather 139,000 signatures. His volunteers ask would be petitioners to sign a petition in support of a new civil rights initiative. Signatories are often unaware of the fact that the petition they've been presented is actually an anti-affirmative action measure, carefully worded to obfuscate its singular intent.

Thankfully, in the state of Missouri, the Secretary of State and Attorney Generals Office have to approve the wording of any ballot petitions. The Secretary of State did not accept the language submitted by Asher and Connerly and proposed new language that clearly describes the propositions intent. In response Connerly and Asher have filed suit to retain their obscure and misleading language.

The Missouri State Conference of the NAACP has been working through the courts to try and stop this latest effort. The following is an update regarding the litigation pending in the Circuit Court of Cole County involving the proposed anti-civil rights initiative petition. [Warning, this is a long post...]

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FACTUAL BACKGROUND
On June 15, 2007, Tim Asher ("Proponent Asher") and a group called the Missouri Civil Rights Initiative filed with Secretary of State Carnahan a proposed Initiative Petition to change Missouri's Constitution ("Proposed Initiative"). Proponent Asher is a representative of Ward Connerly and his American "Civil Rights" Institute.

On July 19, 2007, the Secretary of State certified the Official Ballot Title for circulation to voters. The Summary Statement of the Official Ballot Title reads:

"Shall the Missouri Constitution be amended to:

• ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
  
• allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona a fide qualifications based on sex?"

The Fiscal Note Summary portion of the Official Ballot Title prepared by State Auditor Montee reads:

"The total cost or savings to state and local government entities is unknown. Most state governmental entities estimate no costs or savings. Moreover, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings but prohibition of certain municipal policies may result in unknown costs."

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LITIGATION
A. Proponent Asher's Suit:

On July 26, 2007, Proponent Asher filed suit against Secretary of State Carnahan claiming that the Summary Statement prepared by her was insufficient, confusing and/or misleading. Proponent Asher is seeking a court order to change the Summary Statement to the following:

"Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:

• The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting?"

[The title challenge is Proponent Asher's only claim.]

B. Shufeldt and Isrealite suit:

On July 30, 2007, Greg Shufeldt of St. Louis and Steve Isrealite of Kansas City (collectively "the Opponents") filed suit against the Secretary of State and the State Auditor regarding their preparation of the Official Ballot Title for the Proposed Initiative. On August 28, 2007, the Opponents amended their Petition. In their amended Petition, the Opponents raise six separate claims.

Count I alleges the Secretary of State's Summary Statement, while accurate, is legally insufficient as it is underinclusive and fails to summarize all material provisions of the Proposed Initiative. The Opponents' claim that the Summary Statement fails to mention the authorization for preferential treatment based on religion, disability, veteran status and age. The Opponents also claim that the Summary Statement also fails to discuss the effect of the proposed amendment would have on court orders. Finally, Opponents claim the Summary Statement fails to state that the Proposed Initiative authorizes new lawsuits for enforcement of its provisions and abolishes remedies currently available to minority and women victims of discrimination.

Count II claims that the fiscal note prepared by the State Auditor does not estimate the measure's cost or savings to governmental entities covered by its provisions. Count II also claims that the Auditor did not properly gather or verify information to make her determination.

Count III challenges the fiscal note summary as it fails to estimate the costs or savings and is based on a flawed fiscal note.

Count IV claims that the procedure used by the State Auditor to evaluate fiscal impact of the measure should have been promulgated as an administrative rule but was not.

Count V claims that the proposed measure violates the constitutional requirement that proposed initiative petitions not contain multiple unrelated topics.

Finally, Count VI claims that the Proposed Initiative exceeds the Initiative Power because its terms violate the Equal Production Clause of the United States Constitution. The Opponents claims the provisions of the Proposed Initiative which allows for preferential treatment for suspect classes and others in some circumstances but not for others in similar circumstances is an illegal classification without a sufficient state interest.

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LITIGATION UPDATE

On January 7th, Judge Callahan issued his ruling

DISCUSSION

A. Summary Statement Portion of the Official Ballot Title
Plaintiffs’ first complaint about the summary statement is the use of the term “affirmative action.” Although the proposed amendment does not use the term affirmative action, an examination of the purpose of the amendment, together with an examination of the definition of affirmative action, makes it clear that the purpose of the proposed amendment is to ban programs that fit the definition of affirmative action.

The equal protection clause of the Missouri Constitution, Art. I, Sec. 2, already severely limits any discriminatory practice by the State. Race, national origin and gender are suspect classifications that are subject to heightened scrutiny. See Powell v. American Motors Corp., 834 S.W.2d 184 (Mo. banc1992); State v. Stokely, 842 S.W.2d 77 (Mo. banc 1992).
The proposed amendment would therefore ban programs that are currently allowed under the state constitution’s equal protection clause and which are intended to improve opportunities or eliminate the lingering affects of past discrimination against women and minorities. These types of programs are commonly referred to as “affirmative action” programs. For example, Webster’s Third New International Dictionary defines affirmative action as “an active effort to improve employment or educational opportunities for members of minority groups and women.” Webster’s Third New International Dictionary of the English Language (Philip Babcock Gove, Ph.D. ed., Mirriam-Webster Inc. 1993). Black’s Law Dictionary defines “affirmative action” as “a set of actions designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination.” Black’s law Dictionary 60 (7th ed. 1999).

The use of the term “affirmative action” allows those reviewing the ballot title to know the issue that the proponents of initiative seek to put before the voters. Regardless of whether a voter is for or against affirmative action programs, that voter will be aware of why they are being asked to sign the petition and what they may ultimately be voting on. The most significant provision of the amendment would ban affirmative action programs in Missouri, as the first bullet point in the Secretary’s summary states. Accordingly, the Court finds nothing “insufficient or unfair” from the use of the term “affirmative action programs” in the ballot summary.

The second bullet point in the Secretary’s summary states that the proposed
amendment will:

“allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards…”

It is this second bullet point which the Court finds troubling because it suggests that the proposed amendment is first going to do away with one class of preferential treatment programs, i.e. affirmative actions programs, and then replace the affirmative action programs with some other kind of preferential treatment programs. The purpose and effect of the proposed amendment is to ban certain preferential programs unless a particular program is necessary to qualify for federal funding. The federal eligibility exception, as well as the court exception, only serves as an exception to programs that are being banned by the amendment.

While the Secretary argued, and this Court agrees, that the term “affirmative action programs” may be utilized to describe in the first sentence what is being banned, the second sentence containing the exception must then grammatically utilize the same subject to which the exception applies. The Court finds no merit to the Secretary’s argument that it would be “confusing, unfair, and misleading to voters to state in one bullet point of the summary that the petition bans affirmative action programs; and state in the very next bullet point that it allows affirmative action programs”, pages 12-13 of Defendants’ Post-Trial Brief.

B. Fiscal Note
Plaintiffs Shufeldt and Israelite claim that the Auditor’s fiscal note fails to meet a statutory requirement that the note actually provide an estimate of the measure’s cost or savings.
Section 116.175.3 provides that the fiscal note must state the measure’s estimated cost or savings, if any, to state and local governmental entities. The fiscal note prepared by the Auditor meets § 116.175.3’s requirements. Each individual entry in the fiscal note states a particular entity’s estimate of the cost or savings of the measure, if any, as to that entity. The Auditor’s decision to have the fiscal note consist of a collage of estimates of costs and savings from individual governmental units is a choice of form of presentation for the Auditor. Given the time constraints and lack of subpoena power, this Court cannot say that her choice of form fails to comply with the statute. While the Auditor could have included a combined net estimate of cost or savings for all entities in the note, § 116.175.3 did not require her to do so.

Aside from form, Plaintiffs failed to show that the Auditor’s fiscal note was insufficient or unfair. In Overfelt v. McCaskill, 81 S.W.3d 732, 737 (Mo. App. W.D. 2002), the court held that establishing insufficiency or unfairness of a fiscal note required a plaintiff to prove “that a better estimate was available” to the Auditor. 81 S.W.3d at 737. “Without such evidence,” the court held, the plaintiff “could not establish that the [fiscal note] was insufficient or unfair…” Id.

Here, Plaintiffs Shufeldt’s and Israelite’s attack on the Auditor’s fiscal note fails for a lack of proof, just like the plaintiff’s claim in Overfelt. The testimony of their expert did not prove that there was available to the Auditor an estimate that was better than what the Auditor obtained from the state and local governmental entities. Plaintiffs’ expert did not have an opinion as to what the correct estimate of cost or savings of the measure would be and she also admitted that she did not know how the proposed amendment would affect any particular state and local governmental entity.

C. Fiscal Note Summary
Plaintiffs Shufeldt and Israelite failed to prove that the Auditor’s fiscal note summary was insufficient or unfair. Hancock v. Secretary of State, 885 S.W.2d 42, 49 (Mo. App. W.D. 1994), held that “[a]s applied to the fiscal note summary, insufficient and unfair means to inadequately and with bias, prejudice, deception and/or favouritism synopsise in [50] words or less, the fiscal note.” As with the summary statement portion of the official ballot title, the Auditor’s fiscal note summary is not required to present “the best language for describing the [measure’s] effect.” Id. The important test is whether the language fairly and impartially summarizes the fiscal note. Within the 50-word limit, the summary need not set out the details of the fiscal note. See Bergman, 988 S.W.2d at 92.

Here, the Auditor’s fiscal note summary fairly and impartially summarizes the fiscal note within the 50-word parameter. Indeed, Plaintiffs’ expert agreed at trial that the fiscal note summary accurately or fairly summarized the responses from the state and local governmental agencies that were listed in the fiscal note.

D. Requirement of a Rule (Shufeldt/Israelite Petition – Count IV)
In Count IV of their petition, Plaintiffs Shufeldt and Israelite make the claim that Defendant Montee was required to promulgate a rule for preparation of fiscal notes.

Plaintiffs cite no statutory provision that would require the Auditor to promulgate a rule for fiscal note preparation, and Chapter 116 does not impose one. As such, their claim fails as a matter of law. “An administrative agency need not promulgate rules … simply because it has the power to do so.” Missouri National Education Assoc. v. Missouri State Bd. Of Education, 34 S.W.3d 266, 287 (Mo. App. W.D. 2000), citing Artman v. State Bd. of Registration for the Healing Arts, 918 S.W2d 247, 251 (Mo. banc 1996). “In the absence of a statutory restraint the choice whether to develop policy by rule, ad hoc adjudication, or both, rests with the discretion of the agency.” Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 357 n.32 (Mo. banc 2001).

E. Single Subject Violation
Plaintiffs Shufeldt and Israelite claim in Count V that the proposed amendment violates Article III, § 50’s single-subject requirement.
This claim is not ripe until petition signatures have been gathered and the Secretary of State certifies the petition for inclusion on the ballot. See Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). Accordingly, the Court dismisses this claim without prejudice.

F. Federal Law and Equal Protection Violations
Plaintiffs Shufeldt and Israelite claim in Count VI that the proposed amendment, if adopted, would violate various federal statutory and constitutional provisions.
These claims are not ripe either. As the Missouri Supreme Court held in State ex rel. Dahl v. Lange, 661 S.W.2d 7 (Mo. banc 1983):
Until the people have voted on the initiative, judicial assessment of the constitutional validity of the proposal would be premature and an encroachment on the legislative function. Should the voters reject the amendment, the Court’s decision as to constitutionality would be an advisory opinion. Courts in Missouri will not render advisory opinions.
Id. at 8 (internal citations omitted). See also Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (Missouri courts do not “give advisory opinions as to whether a particular proposal would, if adopted, violate some superseding fundamental law, such as the United States Constitution.”).

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ORDER - of Judge Richard Callahan

IT IS HEREBY ORDERED that Plaintiffs’ request for alternative summary language is granted and the following Summary Statement portion of the Ballot Title is certified to the Secretary of State:

Shall the Missouri Constitution be amended to:

"Ban state and local government affirmative action programs that give preferential treatment in public contracting, employment, or education based on race, sex, color, ethnicity, or national origin unless such programs are necessary to establish or maintain eligibility for federal funding or to comply with a court order ?"

IT IS FURTHER ORDERED that the Fiscal Note and Fiscal Note Summary is certified as previously prepared by the Auditor and certified by the Secretary of State. Plaintiffs Shufeldt and Israelite’s claims with respect to the Fiscal Note and Fiscal Note Summary are denied.

IT IS FURTHER ORDERED that all remaining Plaintiffs’ claims are denied.

SO ORDERED THIS 7th Day of January, 2008.

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We in the Wichita Branch NAACP applaud the legal efforts of the Missouri State Conference and stand ready to assist you in any way requested or necessary. We recognize that while this ruling was favorable, this fight is far from over; Mr. Connerly and his group will continue gathering signatures and there is a real chance that this question could end up on the ballot. Hopefully, through this blog and the combined efforts of concerned members and friends, we can spread the word about the real intent of Mr Connerly and his multi-state faux civil rights initiatives...