United States v. William Mefford

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3368
___________
Missouri Roundtable for Life, a *
Missouri Benevolent Corporation; *
Frederic N. Sauer, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Robin Carnahan, in her individual *
capacity and as Secretary of State of *
Missouri; Susan Montee, in her *
individual capacity and as Auditor *
of the State of Missouri, *
*
Appellees. *
___________
Submitted: September 20, 2011
Filed: March 15, 2012
___________
Before LOKEN, BEAM, and MURPHY, Circuit Judges.
___________
MURPHY, Circuit Judge.
Taking advantage of a state created opportunity for citizen initiatives, Missouri
Roundtable for Life and one of its directors, Frederic N. Sauer (Roundtable)
submitted thirteen proposed constitutional amendments to the Missouri secretary of
state. The statutory process requires state officers to prepare a summary statement,
fiscal note summary, and fiscal note for each proposed constitutional amendment.

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Roundtable alleges in this § 1983 action that the summaries prepared by the secretary
of state, Robin Carnahan, and the state auditor, Susan Montee, "continuously and
persistently stymied and frustrated" its intended messages in violation of its
constitutional rights and Missouri statute § 116.334. After determining that
Roundtable had not shown that its First Amendment or due process rights had been
violated, the district court granted motions to dismiss its federal claims and declined1
to exercise jurisdiction over its state law claims. Roundtable appeals, and we affirm.
I.
A.
Missouri permits its citizens to propose amendments to the state constitution.
See Mo. Const. art. III, § 49. Chapter 116 of Title IX of Missouri's statutory code,
entitled "Initiative and Referendum," outlines how citizens may submit proposed
amendments, what duties state officers must complete in the process, and how any
complaints may be pursued in the state courts. The same chapter gives specific duties
during the initiative process to the secretary of state, the state auditor, and the
attorney general. Each of these state officers are elected by voters to serve four year
terms. See Mo. Const. art. IV, § 17; Mo. Rev. Stat. tit. IV, chs. 27–29.
The statutes provide that proponents of a constitutional amendment may start
the amendment process by submitting to the secretary of state a "sample sheet" with
the proposed form in which the petition would be circulated. Mo. Rev. Stat. §
116.332(1). Upon receipt the secretary of state must refer the sample petition sheet
"to the attorney general for his approval and to the state auditor." Id. The attorney
general reviews each petition sheet for sufficiency as to form and then sends it on to
The Honorable E. Richard Webber, United States District Judge for the1
Eastern District of Missouri.
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the secretary of state, noting his approval or his rejection and any other comments.
Id. § 116.332(1)–(2). The secretary of state then makes a "final decision as to the
approval or rejection of the form of the petition" and sends written notice of that
decision to the proponent "within thirty days after submission of the petition sheet."
Id. § 116.332(1), (3).
If the petition form is approved, the secretary of state has ten days in which to
prepare and transmit to the attorney general a summary statement of the proposal in
100 words or less. Id. § 116.334(1). The summary statement must be “in the form
of a question using language neither intentionally argumentative nor likely to create
prejudice either for or against the proposed measure.” Id. The attorney general then
has ten days to approve the "legal content and form" of the summary statement. Id.
Within twenty days of her receipt of a petition sample sheet from the secretary
of state, the state auditor is required to prepare a fiscal note and a fiscal note summary
for each proposed initiative. Id. § 116.175(2). She shall assess "the measure’s
estimated cost or savings, if any, to state or local governmental entities." Id. §
116.175(1)–(3); see id. § 116.332(1). Like the secretary of state's summary statement,
the auditor's fiscal note summary must be written "in language neither argumentative
nor likely to create prejudice either for or against the proposed measure." Id. §
116.175(3). It must be no longer than 50 words (articles not counted). Id.
The auditor may consult "with the state departments, local government entities,
the general assembly and others with knowledge pertinent to the cost of the proposal"
and may review "proposed statement[s] of fiscal impact" submitted by proponents or
opponents of the initiative. Id. § 116.175(1). The fiscal note and the fiscal note
summary are to be forwarded to the attorney general who must, within ten days of
their receipt, approve the legal content and form of the fiscal note summary and
"forward notice of such approval to the state auditor." Id. § 116.175(4).
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Within three days after receiving the official summary statement and an
approved fiscal note summary and fiscal note, the secretary of state is to certify an
"official ballot title." Id. § 116.180. The official ballot title consists of the secretary's
summary statement and the auditor's fiscal note summary in separate paragraphs, and
after certification a copy must be sent to the amendment's proponent. Id. §§
116.010(4), 116.180. The official ballot title is to be "affix[ed]" to each petition page
used by circulators to obtain voter signatures in support of the proposed amendment.
Id. § 116.180. The proponent's own proposed language for the amendment must also
be placed on the petition page or attached to it. See id. § 116.050(1). The law thus
provides that both the proponent's proposal and the summaries prepared by the state
officers must be made available with each petition page used in the solicitation
process. See id. §§ 116.050(1), 116.180.
A proposed constitutional amendment will only be placed on the election ballot
if the proponent obtains supporting signatures from "eight percent of the legal voters
in each of two-thirds of the congressional districts in the state." Mo. Const. art. III,
§§ 50, 53; Mo. Rev. Stat. § 116.150. The official ballot title appears on the voting
ballot, see Mo. Rev. Stat. §§ 116.010(4), 116.230(3), and at least two copies of the
full text of the proponent's proposed constitutional amendment must be posted at each
polling place. See id. §§ 116.010(5), 116.290(1), (3), (4).
Any citizen may challenge an official ballot title by initiating an action in state
circuit court in Cole County within ten days after the official ballot title has been
certified by the secretary of state. Id. § 116.190(1). The secretary of state shall be
named as a defendant if the action challenges the official ballot title, and the state
auditor shall be named as a defendant if it challenges the fiscal note or the fiscal note
summary. Id. § 116.190(2). The petition shall state the reason or reasons why the
secretary's summary statement or auditor's fiscal note or fiscal note summary is
"insufficient or unfair" and shall request a different summary statement, fiscal note
summary, or fiscal note. Id. § 116.190(3). Such an action is to be placed at the top
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of the state court's civil docket, and an appeal to the Missouri Supreme Court is
permitted within ten days after the circuit court's decision. Id. § 116.190(4).
B.
Between March 2008 and September 2009 Roundtable submitted thirteen
proposed ballot initiatives to the Missouri secretary of state. The subject matter of
the thirteen proposed amendments included such topics as "Abortion Services,"
"Human Cloning," and "Taxpayer Protection." Roundtable also volunteered its own
proposed summary statement for each of its amendments and requested that the
secretary of state adopt those for her official summary statements. Although the
statutory scheme does not provide for such submissions to the secretary of state, it
does authorize submission of a "proposed statement of fiscal impact" to the state
auditor by an amendment's proponent. Mo. Rev. Stat. § 116.175(1). Roundtable has
presented no evidence that it provided Auditor Montee with any proposed statements
of fiscal impact.
Secretary of State Carnahan followed the next step in the statutory process by
preparing a summary statement for each of Roundtable's proposals, as did Auditor
Montee by preparing a fiscal note summary and a fiscal note for each. As required
by law, the attorney general then reviewed each summary statement, fiscal note
summary, and fiscal note prepared by the state officers. He approved each. After this
process was completed, the secretary of state certified an official ballot title for each
proposal consisting of two paragraphs. One is the secretary's summary statement and
the other is the auditor's fiscal note summary.
Roundtable makes a general objection to Carnahan's summary statements and
Montee's fiscal note summaries and fiscal notes, but it has not shown that they
contained false statements, pejorative language, or critical commentary. The amount
of variation between the wording in Carnahan's summary statements and the language
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volunteered by Roundtable differs, depending on the individual amendment. Several
representative examples of the official ballot titles prepared by the state officers are
juxtaposed in the attached Appendix with the volunteered language Roundtable
preferred. The state auditor's fiscal note summaries make up the second paragraph
of the official ballot title. Those summaries concluded for each of Roundtable's
proposals that the "total costs [or savings] to state and local governmental entities are
unknown." Roundtable has not raised any specific challenges to the wording used in
the auditor's summaries.
Counsel for the state officers claims that Roundtable never circulated any of
its thirteen proposed amendments in the attempt to secure signatures in support and
that it withdrew all of its petitions before the 2010 elections. The record made before
the district court does not show any effort to obtain the required number of signatures
for them to be voted on. No evidence was produced by Roundtable to show that it
ever affixed the official ballot titles to initiative petitions, attempted to obtain
signatures in favor of its proposed amendments, actually obtained any signatures, or
was thwarted in its attempts.
After receiving the certified official ballot titles for all thirteen proposed
amendments, Roundtable brought this action under 42 U.S.C. § 1983 against
Carnahan and Montee, in both their individual and official capacities. In an
unverified complaint Roundtable alleges that the state officers violated its First and
Fourteenth Amendment rights by intentionally modifying key language and
improperly characterizing its proposed amendments to undermine its political
message. Roundtable also alleges that Carnahan violated Missouri statute § 116.334,
alone and by conspiring with Montee. Roundtable attached as exhibits to its
complaint certain documents, including certified official ballot titles and its own
proposed summary statements. It never submitted any affidavits to show that it ever
affixed the official ballot title to a petition, attempted to gain signatures supporting
its proposals, or encountered any citizen confusion.
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In its complaint Roundtable seeks declaratory and injunctive relief forbidding
the state officers "from doing in the future that which they have been alleged to have
done [in the complaint]," an injunction "forbidding [use of] any and all" summary
statements, fiscal note summaries, and fiscal notes drafted by state officers for
Roundtable's thirteen proposed amendments unless approved in advance by a federal
court, and actual, compensatory, nominal, and punitive damages, as well as costs and
attorney fees.
At the time Roundtable filed this action in the federal district court, it may have
already initiated multiple state court actions under Missouri statute § 116.190 to
challenge at least some of the official ballot titles referenced here. The district court
noted that the record did not reflect the details or dispositions of those cases. Counsel
for the state officers has indicated that Roundtable never obtained final judgments in
any of them, but that one of Carnahan's summary statements was apparently approved
by a circuit court. The brief for the state officers states that while Roundtable's
proposed initiatives may have led to litigation, "in most cases it had been dismissed
or the initiative petition withdrawn." Roundtable has not shown whether it filed
challenges in state court against any of the official ballot titles which it challenges
here.
The district court granted motions by the state officers to dismiss Roundtable’s
claims with prejudice, after concluding that Roundtable had failed to state a First
Amendment claim, that it could not assert a procedural due process claim because the
state had provided constitutionally adequate process under Missouri statute §
116.190, and that it lacked standing to raise a substantive due process claim. After
dismissing all of Roundtable's federal claims, the district court declined to exercise
jurisdiction over its state law claims.
Roundtable challenges the district court's dismissal of its claims under the First
and Fourteenth Amendments, as well as the dismissal of its state law claims. We
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review the dismissal of the constitutional claims de novo, accepting the facts alleged
in the complaint as true and making all reasonable inferences in favor of Roundtable.
See Mulvenon v. Greenwood, 643 F.3d 653, 656–57 (8th Cir. 2011).
II.
A.
A threshold question is whether Roundtable has standing to raise a First
Amendment challenge to the official ballot titles prepared by the secretary of state
and auditor. Although the official ballot titles would have appeared on the election
ballot if Roundtable had procured signatures from the number of legal voters required
by Missouri law for constitutional amendments (8% in each of two thirds of the state's
congressional districts), these documents did not restrict Roundtable's own speech in
support of its proposals. Roundtable remained free to use its preferred wording for
its proposals in soliciting voter signatures to place the amendments on the election
ballot. And according to Missouri law Roundtable's own wording for its proposed
amendment must be placed on each petition page used to obtain voter signatures or
attached to it. Mo. Rev. Stat. § 116.050(1). While Missouri law provides any
dissatisfied proponent an opportunity for redress in the state courts, Roundtable has
not stated whether it ever completed that process.
A party invoking federal jurisdiction must show a right to assert a claim in
federal court by showing injury in fact, causation, and redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The Supreme Court has
explained that the injury in fact requirement means showing "an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical." Id. at 560 (citations and quotation omitted). A party
cannot show an injury in fact by mere "[a]llegations of possible future injury."
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). While a party need not "expose
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himself to actual arrest or prosecution to be entitled to challenge a statute that he
claims deters the exercise of his constitutional rights," Steffel v. Thompson, 415 U.S.
452, 459 (1974), he must show that his injury is more than "imaginary or
speculative." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)
(citation omitted).
Roundtable has not clearly articulated how it has suffered any invasion of a
legally protected interest or how it has been injured by the official ballot titles
prepared by the state officers. Roundtable's conclusory complaint accuses the
secretary of state and auditor of "draft[ing] and issu[ing]" summary statements
"designed to negatively affect voters' perceptions of and reactions to the proposed
amendment[s]." It alleges that it has been "continuously and persistently stymied and
frustrated" and that it "cannot reasonably proceed to exercise [its] rights under the law
to present initiative petitions before Missouri voters, because of the [state officers']
actions and . . . pattern of conduct."
Roundtable attached as exhibits to its unverified complaint several documents
including blank petition sheets, its own volunteered summary statements, and ballot
titles prepared by the state officers. Its attachments did not include any documents
to show that subsequent to the certification of the official ballot title Roundtable ever
took advantage of the opportunity to circulate its proposals in order to obtain voter
signatures to place its initiatives on the ballot. There are no allegations or showing
that Roundtable ever affixed any official ballot title to petitions or that it ever
attempted to obtain signatures in favor of its proposals. Nor has it shown that anyone
misunderstood its intended message because of the official ballot titles or that citizens
would only look at the official ballot titles when deciding whether to support a
proposal. Roundtable offered no showing that the summaries prepared by the state
officers prevented it from obtaining signatures in support of its proposals.
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A party can show a cognizable injury by showing that its First Amendment
rights have been chilled by harm to reputation or threat of criminal prosecution.
See Babbitt, 442 U.S. at 298; Meese v. Keene, 481 U.S. 465, 473 (1987). For
example, a California state senator showed a cognizable chilling of his First
Amendment rights in Meese by producing affidavits to establish how he would be
harmed by a federal statute requiring films he wanted to show to be labeled as
political propaganda. 481 U.S. at 473–77. And initiative proponents established
standing in 281 Care Committee v. Arneson, 638 F.3d 621, 627–31 (8th Cir. 2011),
by showing a credible threat of prosecution for knowingly or recklessly making false
statements about a proposed ballot initiative. In contrast, Roundtable has made no
showing that it faced harm to its reputation or criminal prosecution.
Even if Roundtable's alleged harm were characterized as a chilling of its
speech, that would be insufficient to confer standing because it has not shown any
concrete or particularized injury to its ability to speak. In Laird v. Tatum, 408 U.S.
1, 2 (1972), plaintiffs claimed they had been chilled from exercising their speech
rights out of fear that an Army program gathering information about domestic
political activities might harm them at some future date. The Supreme Court rejected
their First Amendment claim, for their allegation of a "subjective chill [was] not an
adequate substitute for a claim of specific present objective harm or a threat of
specific future harm." Id. at 13–14 (internal quotations omitted). That is also the case
here where Roundtable simply makes the conclusory allegation that it "cannot
reasonably proceed to exercise [its] rights under the law to present initiative petitions
before Missouri voters" without allegations or evidence that it ever tried to obtain
signatures in support of its proposals, that it was ever prevented from circulating
petitions, that the official ballot titles confused or misled voters, or that any voters
were unable or unwilling to consider Roundtable's proposals.
While Roundtable prefers its own speech to that the secretary of state and the
state auditor used while carrying out their statutory duties, it has not shown any
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concrete and particularized "legally protected interest" in controlling their official
speech. Lujan, 504 U.S. at 560. Missouri has chosen to give the secretary of state
and the auditor obligations to prepare official summaries of citizen proposals for
constitutional amendments. The legislature could have reasonably believed that these
officials would have more familiarity with existing laws and how citizen proposals
might fit into the statutory scheme. Roundtable has not shown that it has a legally
protected interest in controlling the manner in which the state officers carry out their
duties. Since Roundtable is free both to use its own description of its proposed
amendments in seeking ballot support for them and to point out its objections to the
official ballot titles, its speech has not been suppressed.
We have required parties to establish First Amendment injury in fact through
factual allegations setting out a concrete and particularized injury. In Zanders v.
Swanson, 573 F.3d 591, 594 (8th Cir. 2009), we concluded that the appellants lacked
standing to challenge a state statute that made it a crime knowingly to make a false
report of police misconduct, for they had presented only conclusory allegations that
they could face criminal sanctions. The alleged chilling of their speech was not
"objectively reasonable" because their factual allegations showed only a possible or
potential injury. Id. Similarly, the plaintiffs in Elend v. Basham, 471 F.3d 1199,
1202–09 (11th Cir. 2006), lacked standing to seek declaratory and injunctive relief
prohibiting the secret service from establishing protest zones at some future political
protest because "the requested relief concern[ed] wholly prospective conduct for
which the details of time, location, audience, and nature of the protest activity [were]
utterly lacking."
In challenges to state initiative laws, plaintiffs typically show injury in fact
through affidavits, whether as verified statements attached to the complaint or sworn
statements submitted later. In Initiative & Referendum Institute v. Walker, 450 F.3d
1082, 1085 (10th Cir. 2006) (en banc), citizen groups challenged a Utah law requiring
wildlife management initiatives to obtain approval of two thirds of those voting
instead of the simple majority normally required. The plaintiffs argued that this
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requirement imposed a "chilling effect" on the exercise of their First Amendment
rights. Id. They submitted affidavits showing they had previously participated in
wildlife initiative campaigns in other western states, had a long history of wildlife
advocacy, had been seriously considering mounting a wildlife initiative campaign in
Utah, but had chosen not to proceed solely because of the two thirds majority
requirement. Id. at 1090–92. The proponents had thus shown more than a
"subjective chill" of their First Amendment rights. Id. at 1090 (citation and quotation
omitted).
Here, Roundtable has not provided any factual allegations to show that it has
suffered a concrete and particularized injury. Roundtable has not alleged that the
summaries prepared by state officers prevented it from circulating its proposed
amendments. It has failed to show that it ever affixed the official ballot titles to its
petitions, attempted to obtain signatures in their favor, or received any negative
feedback from potential signatories because of the official ballot titles. It has also
not shown that it ever completed the process provided under Missouri statute §
116.190 to attempt to modify the language in the official ballot titles before
circulation. Nothing concrete has been offered to show that the official ballot titles
would have actually impaired its ability to obtain signatures in support of its proposed
amendments. Since Roundtable remained free to use its own speech in support of its
proposals and in criticism of the official ballot titles, it has failed to show any
objectively reasonable chilling of its speech. It therefore lacks standing to raise its
First Amendment challenges.
Standing and ripeness are sometimes closely related. Johnson v. Missouri, 142
F.3d 1087, 1090 n.4 (8th Cir. 1998). In assessing ripeness, we focus on whether the
case involves "contingent future events that may not occur as anticipated, or indeed
may not occur at all," 281 Care Committee, 638 F.3d at 631 (citation omitted), and
we examine "important prudential limitations" that may "require us to stay our hand
until the issues in [the] case have become more fully developed." Morgan v.
McCotter, 365 F.3d 882, 890 (10th Cir. 2004). Roundtable's complaint only alleges
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that the secretary of state and auditor prepared summaries which it believes are
misleading. It has not shown in the record before the court that it ever attempted to
obtain support for its proposed amendments by circulating petitions including the
official ballot titles, that it obtained any negative voter responses, or that it ever
completed the process to try to modify them in the state courts. Without a specific
showing of harm to Roundtable, its action involves uncertain or contingent future
events not yet ripe for judicial review.
B.
The district court dismissed Roundtable's First Amendment claims on the
merits, citing Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), a case in
which we stated that "the right to a state initiative process is not a right guaranteed
by the United States Constitution." Roundtable contends that the district court erred
in dismissing its claims because its First Amendment rights were violated even
though Missouri's initiative process is not guaranteed by the Constitution. It argues
that the state officers intentionally and materially altered its "core political speech,"
citing Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 186
(1999). Also relying on Meyer v. Grant, 486 U.S. 414 (1988), Roundtable requests
that the official summary statements be reviewed under "strict scrutiny." The state
officers respond that their summaries did not implicate Roundtable's First
Amendment rights because they were prepared as part of a state created initiative
process. They also suggest that a balancing test would be the appropriate standard
to employ if the court were to conclude that First Amendment injury had been shown,
citing Campbell v. Buckley, 203 F.3d 738 (10th Cir. 2000) (initiative procedures
upheld under balancing test). Neither side on appeal addressed Roundtable's standing
to raise its First Amendment claims, but both fully briefed the other constitutional
issues. We review their arguments.
In Meyer, the Supreme Court examined a Colorado law imposing criminal
penalties for paying or receiving money to circulate initiative petitions. 486 U.S. at
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416 n.1. That law restricted political speech by limiting "the number of voices" who
could spread a proponent's message, making it less likely to "garner the number of
signatures necessary to place the matter on the ballot." Id. at 422–23. Since this
affected "core political speech," the Court applied "exacting scrutiny" and invalidated
the law. Id. at 420–22. Similarly, the statutes found unconstitutional in Buckley
required petition circulators to be registered voters and to wear identification badges.
525 U.S. at 192–200. They also required initiative proponents to report any payments
made to circulators. Id. at 201–04. The Court invalidated these statutes for
decreasing the available speech by "drastically reduc[ing]" the number of people
willing to promote an amendment, "discourag[ing] participation" in the petition
circulation process, and even forcing paid circulators "to surrender [their]
anonymity." Id. at 193, 200, 204 (citation and quotation omitted).
Roundtable has failed to show how its asserted right to control the speech used
by elected state officers in response to citizen initiative proposals for constitutional
amendments would be subject to the exacting scrutiny test used in Meyer and
Buckley. Both of those cases involved laws that limited the number of people who
would be willing to circulate petitions, discouraged participation in an initiative
campaign, and inevitably reduced the amount of speech available to proponents.
Where no restriction on speech has been shown, courts have refused to apply exacting
scrutiny. For example, strict scrutiny was "inapplicable" in Biddulph v. Mortham, 89
F.3d 1491, 1498 (11th Cir. 1996), because the initiative proponent there had not
shown that a challenged Florida voting law restricted political discussion. That law
permitted the Florida Supreme Court to reject a proposed amendment for ambiguity
or for violation of a "single-subject requirement" even after a proponent had obtained
the necessary signatures to place it on the ballot. Id. at 1494. The proponent argued
that the Florida law violated the First Amendment by deterring him from proposing
ballot initiatives, but the court concluded that he had failed to make out a viable claim
because the law in question did not "burden[] the exchange of ideas." Id. at 1500–01.
It also commented that "[m]ost restrictions a state might impose on its initiative
process would not implicate First Amendment concerns." Id. at 1500.
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Like the Florida law in Biddulph, the Missouri ballot initiative law challenged
by Roundtable does not limit the exchange of ideas during the petition circulation
process. Missouri's requirement that state officers prepare summary statements for
proposed amendments does not limit the number of people who can circulate petitions
in favor of a proposed amendment, restrict the speech they use in doing so, or regulate
how many others they may approach in an attempt to garner support. The summaries
prepared by the state officers do not purport to be Roundtable's speech. Roundtable
can ask its circulators to express disagreement with the summaries prepared by
elected state officers, can affix its own volunteered summaries to the petitions it
circulates, and can prepare a written message explaining the ways that it believes the
state officers' summaries are misleading or deficient.
Our own circuit precedent is not only illustrative, but governing. In
Dobrovolny, 126 F.3d at 1112, we determined that Nebraska's constitutional
requirement that initiative proponents obtain signatures from 10% of the state's
registered voters on a particular date was not subject to Meyer's exacting scrutiny and
did not violate the First Amendment. That Nebraska vote requirement "in no way
restricted [the] ability [of proponents] to circulate petitions or otherwise engage in
political speech." Id. That is also the situation in the case now before our court. We
similarly concluded in Wellwood v. Johnson, 172 F.3d 1007, 1008–09 (8th Cir.
1999), that an Arkansas law requiring a larger number of signatures to place
initiatives on the ballot for laws that would change a county from "wet" to "dry" or
vice versa did not violate the First Amendment because it "in no way" prevented
proponents' views from being heard. That law was also not subject to strict scrutiny
and did not violate the First Amendment because it did not decrease the speech
available to initiative proponents. Id. at 1009.
The Tenth Circuit's decision in Walker, 450 F.3d at 1099–1101, is also
instructive. There, Judge McConnell, writing for the en banc majority, proceeded by
analyzing first whether the First Amendment was even implicated by Utah's wildlife
initiative requirement. Id. at 1099. He concluded it was not. Id. at 1101. That was
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because proponents were not restricted in their ability to publicize their views and the
law did not regulate the advocacy process itself or limit the "communicative conduct
of persons advocating a position." Id. at 1100–01. There was thus no need to
mention the circuit's prior Campbell case which had applied a balancing test even
without analyzing whether a First Amendment issue had been shown. The situation
in the case before our court is similar to Walker because Roundtable has not been
prevented by Missouri law from using its own speech, including its proposed
summaries and the full text of its proposals, in its attempts to obtain the required
number of signatures for its proposed amendments to be placed on the ballot.
Roundtable has in fact not shown any restriction on its ability to circulate
petitions or otherwise engage in political speech. See Walker, 450 F.3d at 1100;
Dobrovolny, 126 F.3d at 1112. Nor has it shown any burden on its ability to
publicize its own views or to use its preferred language while collecting signatures.
See Wellwood, 172 F.3d at 1009. Roundtable's own wording of its proposed
amendments must be affixed or attached to all petitions for potential signatories to
view and would also be required to be available at all polling places if any of the
amendments were ever placed on the ballot. Moreover, if Roundtable believed that2
the summary statements prepared by state officers were unfair or misleading, it could
have completed a challenge against them in state court as provided under Missouri
statute § 116.190. It could also have informed potential signatories that it disagreed
with the official ballot titles and used that fact in the next election cycle to attempt to
gain additional support for its proposals. Since Roundtable has not shown that it has
been limited in its ability to speak, it has not made out any First Amendment claim.
Since Roundtable apparently never completed the circulation process for its2
constitutional initiatives, it is unclear what First Amendment issues might have
materialized if it had succeeded in placing its proposed amendments on the ballot.
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III.
Roundtable also claims violation of its due process rights. The district court
assumed that Missouri's initiative procedure created a protected liberty interest, but
concluded that Roundtable could not assert a procedural due process claim because
it had not alleged "that the procedures afforded [to it] by Missouri law were
inadequate." It further concluded that Roundtable lacked standing to assert a
substantive due process claim because it was bringing nothing more than a
generalized grievance available to all voters.
A procedural due process claim requires showing a deprivation of a protected
life, liberty, or property interest "without due process of law." Parratt v. Taylor, 451
U.S. 527, 537 (1981) (citation omitted), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327, 330–31 (1986). Whether a constitutional violation has
occurred depends in part on "what process the State provided, and whether it was
constitutionally adequate." Zinermon v. Burch, 494 U.S. 113, 126 (1990). Even
assuming that Roundtable sufficiently asserted a liberty interest in Missouri's
initiative procedures, it has failed to state a procedural due process claim because no
party has established the state's review procedures to be inadequate or
unconstitutional. Missouri statute § 116.190 allows Roundtable or any other citizen
to challenge an official ballot title or fiscal note that may be perceived to be
insufficient or unfair. Any such challenge is to be placed at the top of the civil
docket, and review by the Missouri Supreme Court is permitted.
The availability of a judicial hearing has been considered adequate process, for
the "right to a judicial hearing is the classic protection provided by the Due Process
Clause against arbitrary deprivations of life, liberty, or property." Larson v. City of
Fergus Falls, 229 F.3d 692, 697 (8th Cir. 2000); see also Rivera-Powell v. New York
City Bd. of Elections, 470 F.3d 458, 467–68 (2d Cir. 2006) (expedited review of
election issue in state court found to be important factor in determining no procedural
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due process violation). In its statutes Missouri provides a constitutionally adequate
process in which a party can be heard expeditiously and seek appellate review.
Roundtable was clearly aware of the procedures under Missouri statute §
116.190 because the district court noted that it had filed "multiple . . . suits" in state
court to challenge the official ballot titles prepared by Carnahan and Montee. It has
not shown whether it fully pursued these claims, however. Roundtable's claims in
federal court focus on the adequacy of the official ballot titles, not on "whether the
State . . . [provided] constitutionally adequate procedures." Parrish v. Mallinger, 133
F.3d 612, 615 (8th Cir. 1998).
Roundtable also alleges that its substantive due process rights have been
violated because the official ballot titles prepared by state officers distorted their
messages in such a manner that voters would have been fundamentally misled. A
substantive due process claim requires a showing that "a fundamental right was
violated and that the conduct shocks the conscience." Akins v. Epperly, 588 F.3d
1178, 1183 (8th Cir. 2009) (footnote omitted). Roundtable has not shown any
conduct that shocks the conscience. Not only did it not allege that it ever affixed any
official ballot titles to petition sheets to solicit signatures or that any voter was misled
by the state officers' summaries, but Missouri requires that the full text of a
proponent's proposed amendment be available with petition sheets and at the polling
places during voting. Burton v. Georgia, 953 F.2d 1266, 1269 (11th Cir. 1992)
(footnote omitted) ("As long as citizens are afforded reasonable opportunity to
examine the full text of the proposed amendment, broad-gauged unfairness is avoided
if the ballot language identifies for the voter the amendment to be voted upon.").
The district court did not err in dismissing Roundtable's due process claims.
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IV.
Finally, Roundtable challenges the district court's refusal to exercise
supplemental jurisdiction over its state law claims after dismissing its § 1983 claims.
Our review of a decision not to exercise supplemental jurisdiction over state law
claims is for abuse of discretion. Glorvigen v. Cirrus Design Corp., 581 F.3d 737,
743 (8th Cir. 2009). The Supreme Court has explained that "in the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988). That is also true in this case. Roundtable has
not shown that the district court abused its discretion by dismissing its state law
claims so that they may be considered by the Missouri courts.
V.
For these reasons we affirm the judgment of the district court.
______________________________
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APPENDIX
________________
Abortion Services Amendment
Official
Ballot Title
Shall the Missouri Constitution be amended to make it illegal for
the legislature or state or local governments to expend, pay, or grant
public funds to hospitals or other institutions for abortion services,
as defined by the general assembly in section 196.1127, Revised
Statutes of Missouri 2003, including those necessary to save the life
of the mother?
This proposal could jeopardize federal grants to state and local
governmental entities for medical assistance programs. The total
costs to state and local governmental entities are unknown.
Roundtable's
volunteered
summary
statement
Shall the Missouri Constitution be amended to make it unlawful to
expend, pay, or grant any public funds for abortion services, as such
term was defined by the Missouri general assembly in 2003?*
* Roundtable apparently did not volunteer any fiscal note summaries of its own. (The state auditor's
fiscal note summary makes up the second paragraph of the official ballot title while the first
paragraph is the summary prepared by the secretary of state.)
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Human Cloning Amendment
Official
Ballot Title
Shall the Missouri Constitution be amended to make it illegal for
the legislature or state or local governments to expend, pay, or grant
public funds to hospitals or other institutions for certain types of
stem cell research currently allowed under Missouri law?
This proposal could have a significant negative fiscal impact on
state and local governmental entities. Federal grants to state
governmental entities for research programs may be in jeopardy.
The total costs to state and local governmental entities are
unknown.
Roundtable's
volunteered
summary
statement
Shall the Missouri Constitution be amended to make it unlawful to
expend, pay, or grant any public funds for human cloning, as such
term was defined by the Missouri general assembly in 2003?*
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Taxpayer Protection Amendment
Official
Ballot Title
Shall the Missouri Constitution be amended to make it illegal for
the legislature or state or local governments to expend, pay, or grant
public funds to hospitals or other institutions for certain research
and services, as defined by the general assembly in section
196.1127, Revised Statutes of Missouri, 2003, such as abortion
services, including those necessary to save the life of the mother,
and certain types of stem cell research currently allowed under
Missouri law?
This proposal could have a significant negative fiscal impact on
state and local governmental entities by prohibiting the use of
public funds for certain research activities. Federal grants to state
governmental entities for research and medical assistance programs
may be in jeopardy. The total costs to state and local governmental
entities are unknown.
Roundtable's
volunteered
summary
statement
Shall the Missouri Constitution be amended to make it unlawful to
expend, pay, or grant any public funds for abortion services, human
cloning, or prohibited human research, as such terms were defined
by the Missouri general assembly in 2003?*
______________________________
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