Case No. IN THE SUPREME COURT OF MISSOURI

Case No. IN THE SUPREME COURT OF MISSOURI STATE of MISSOURI ex rel. PAMELA K. GROW; STEVEN AND LAURA M. HAUSLADEN; GEORGE W. HOWELL; ROBYN L. HAMLIN; PAUL CONRAD; MATTHEW A. HAY; RONALD C. REITER; GREGORY A. MURPHY; SALLY S. CATO; and CHARLES L. SANDERS, Relators, v. JEREMIAH W. NIXON, In his Official Capacity as Governor of the State of Missouri, Respondent. SUGGESTIONS IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS I. INTRODUCTION Ever since this state was founded the Missouri Constitution has commanded the governor to issue writs of election to fill vacancies in either house of the General Assembly. See Mo. Const. 1820 Art. III, 9 ( The governor shall issue writs of election to fill such vacancies as may occur in either house of the general assembly. ); Mo. Const. 1865 Art. IV, 14 ( The governor shall issue writs of election to fill such vacancies as may occur in either house of the general assembly. ); Mo. Const. 1875 Art. IV, 14 ( Writs of election to fill such vacancies as may occur in either house of the General Assembly shall be issued by the Governor. ); Mo. Const. 1945 Art. III, 14 ( Writs of -1-

election to fill vacancies in either house of the general assembly shall be issued by the governor. ). But today Governor Nixon defies this constitutional command, claiming that he has no obligation to issue writs of election to fill vacancies in the General Assembly. Despite the fact that the Governor himself caused the vacancy in the 22 nd Senate District in December 2013, he has flatly refused to issue a writ of election that would enable the voters of Missouri s 22 nd Senate District to elect someone to restore their representation in that house of the state legislature. Similarly, since at least 1825, Missouri state law has mandated that whenever the governor shall receive any resignation or notice of a vacancy [in either house of the general assembly] he shall, without delay, issue a writ or writs of election to supply such vacancy. 1825 Laws of the State of Missouri, Revised, Vol. II, p. 503. Almost precisely that same wording is still in effect today, now found in section 21.110, RSMo. This phrasing creates a binding responsibility on the governor to issue writs of election without delay when a vacancy occurs in the legislature, and when considered in light of the purpose of the law to ensure that citizens are properly represented in their legislature the only reasonable reading of this statute requires a conclusion that the election to fill that vacancy must be held as soon as possible. But today, in addition to his claim that he has no obligation whatsoever to issue writs of election to fill vacancies in the General Assembly, Governor Nixon claims that if he deigns to call a special election at all, he has absolute discretion as to when that election will be held. Thus, even though the 120 th Representative District lost its representative on June 5, 2013, Governor Nixon for nearly eight months refused to issue a writ of election to supply that legislative -2-

vacancy, and when he finally did so he bypassed the next regularly-scheduled election date (which would allow this district meaningful representation for the last six weeks of the Spring 2014 regular session of the General Assembly, as well as for any special election that might be called) in favor of an election date just three months before the next general election. As the facts of the instant case demonstrate, Governor Nixon s blatant disregard of his constitutional and statutory duty is audacious and (particularly when there are multiple vacancies in the General Assembly) it is dangerous to Missouri s constitutional system. If this Court endorses the Governor s arguments, it would allow the executive branch to continue depriving roughly 300,000 Missouri citizens of their right to be properly represented in their state legislature. It would also give the chief executive a green light to undercut the power of the legislative branch by depriving that body of members without allowing citizens to replace them. Missouri law plainly rejects the notion that the Governor may willfully forestall citizens ability to fill vacancies in the legislature. To the contrary, the Constitution requires the Governor to facilitate the filling of legislative vacancies. For this Court to hold otherwise would erode the foundational principle of Missouri s form of government that the people are the source of all political power, and the government exists to secure citizens rights. Mo. Const. Art. I, 1, 2. -3-

II. MISSOURIANS EXERCISE OF FUNDAMENTAL CONSTITUTIONAL RIGHTS DEPENDS ON LEGISLATIVE REPRESENTION When the American colonies declared their independence from England in 1776, one of their express reasons for doing so was that King George had denied their Right to Representation in the Legislature, which they described as being a Right inestimable to them, and formidable to Tyrants only. 1 See Declaration of Independence, 5. As the Missouri Supreme Court has recently noted, [n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Pearson v. Koster, 359 S.W.3d 35, 39 (Mo. banc 2012) (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)). Unlike the U.S. Constitution, the Missouri Constitution expressly acknowledges that this state s citizens have the right of suffrage, and declares that no power, civil or military, shall at any time interfere to prevent the free exercise of that right. Mo. Const. Art. I, 25. A representative voice in each house of the state legislature is part and parcel of the right of suffrage, and it is also directly related to the right to apply to those invested with the powers of government for the redress of grievances by petition or remonstrance, which is protected under both the 1 The Declaration emphasized this point because it was part and parcel of the right of free elections expressed in the English Bill of Rights of 1689. That element of the English Bill of Rights was adopted in response to King James II s refusal to issue writs of election for Parliament. See Fagan v. Smith, 41 A.3d 816, 819 fn. 2 (Pa. 2012). -4-

First Amendment of the U.S. Constitution and Article I, section 9 of the Missouri Constitution. 2 The Missouri General Assembly is the primary instrument through which citizens of this state exercise their right of self-governance. On the one hand, the persons elected to fill seats in the General Assembly give voice to their constituents interests and concerns in shaping the laws that will govern them. On the other, legislators also act as educators and intermediaries for their constituents, helping citizens of their district understand the state s laws and working to ensure that citizens are treated fairly in their interactions with government agencies. The right of representation in the legislature exists because, as the Founding Fathers knew all too well, a citizen with inadequate representation in the legislature is a citizen at a severe political disadvantage in comparison to those citizens with full representation. The rights the Relators have asserted in this matter demand the highest degree of judicial respect and protection, and this Court should subject to strict scrutiny any delay in securing citizens right of representation in the legislature. 2 If a citizen believes that state law should be changed in some way, their representatives in the General Assembly are their direct link to their government; a citizens legislators are precisely the persons they should be able to petition when the citizen wishes to explain why they think existing laws are flawed and to recommend improvements. -5-

III. THE GOVERNOR MUST ISSUE WRITS OF ELECTION WHENEVER A VACANCY OCCURS IN THE LEGISLATURE The Missouri Constitution expressly directs the Governor to issue writs of election when there is a vacancy in either house of the legislature, stating: Writs of election to fill vacancies in either house of the general assembly shall be issued by the governor. Mo. Const. Art. III, 14. (emphasis added) Interpreting similar constitutional provisions, a number of state and federal courts have concluded that the use of the word shall in this context is mandatory, depriving the officer charged with issuing writs of election of any discretion not to issue those writs. See, e.g., ACLU v. Taft, 385 F.3d 641 (6 th Cir. 2004)(use of word shall in U.S. Constitution requires executive authority of a state to issue writs of elections to fill vacancies in the U.S. House of Representatives); Jackson v. Ogilvie, 426 F.2d 1333 (7 th Cir. 1970)(same); Fagan v. Smith, 41 A.3d 816 (Pa. 2012)(use of word shall in Pennsylvania Constitution requires Speaker of Pennsylvania House of Representatives to issue writs of elections to fill vacancies in that house of the legislature); State ex rel. West Virginia Citizen Action Group v. Tomblin, 715 S.E.3d 36 (W.V. 2011)(use of word shall in West Virginia Constitution requires acting governor to call special election to fill vacancy in governor s office). Although in contexts not presented in the instant case there might be room for debate as to whether an official required to issue writs of election to fill legislative vacancies has discretion as to when those elections might be held, there can be no reasonable question as to the fact that Article III, section 14 of the Missouri Constitution does not give the Governor any discretion as to whether he will issue the writs. -6-

IV. VACANCIES IN THE GENERAL ASSEMBLY SHOULD BE FILLED AS SOON AS POSSIBLE One factor that distinguishes legislative vacancies in Missouri from vacancies in many other jurisdictions is that, except in the case of a disaster caused by enemy attack on the United States, 3 there is no provision allowing for the appointment of persons to serve in the legislature while the people are waiting for their opportunity to choose a new legislator. Thus, where other jurisdictions ensure that someone will be tasked with providing a voice in the legislature on behalf of citizens whose chosen representative can no longer serve them, in Missouri the seat simply remains empty until filled via a special election. This total lack of legislative representation subjects Missourians to an even more severe burden than is addressed in similar cases from other jurisdictions. It also explains why Missouri s constitution and statutes both anticipate that vacancies in the legislature should be filled as soon as possible. It is telling that Article III, section 46(a), which allows for the temporary appointment of government officials in emergencies, specifically states that elections shall always be called as soon as possible to fill any elective vacancies that had been filled by appointments. Indeed, the Missouri Constitution makes clear that other sorts of vacancies even for offices of far less importance than that of a member of the General Assembly must be filled with haste. See Mo. Const. Art. IV, 40(a) (allowing members of conservation commission to fill vacancy if governor fails to do so within 3 Mo. Const. Art. III, 46(a). -7-

thirty days ); Art. 13, 3(6) (governor must act within thirty days to appoint person to fill vacancy on Missouri Citizens Commission on Compensation for Elected Officials). Missouri s statutes also indicate a need for haste in filling vacant offices. In addition to the statutory instruction that the Governor should issue writs of election to supply legislative vacancies without delay, RSMo. 21.110, when a sheriff s office is vacated state law requires the election to fill that vacancy to be held on or before the tenth Tuesday after the vacancy occurs. RSMo. 57.080. That means that at most seventy days will elapse between the vacation of a sheriff s office and the date of the election to fill the vacancy. Fagan v. Smith is the case most similar to the instant case, and therefore should be most instructive to this Court. In that case, there were six vacancies in the Pennsylvania House of Representatives and, although the Pennsylvania Constitution states that when a house of the state legislature has a vacancy the presiding officer of that house shall issue a writ of election to fill such vacancy, the Speaker of the House claimed that the courts could not compel him to act because he had discretion as to when to issue such a writ and when the elections should be held. Fagan, 41 A.3d at 819. The Pennsylvania Supreme Court rejected this argument, holding that the use of the word shall created a mandatory, nondiscretionary ministerial duty to issue writs of election whenever legislative vacancies should occur. But that was not the end of the court s analysis. It also held that both the state s constitution and statutes contemplate that the writs of -8-

election should issue and the elections be held quickly. 4 Id. Thus, even if the Pennsylvania Constitution allowed a limited measure of discretion as to when special elections might be held to fill legislative vacancies, that limited measure of discretion did not allow regularly scheduled elections to go by without issuing writs to fill vacant seats. Id. This Court should adopt the same reasoning. The Fagan court was applying constitutional provisions with substantially the same wording as the relevant provisions in the Missouri Constitution. Compare Mo. Const. Art. III, 14 with Pa. Const. Art. II, 2; also compare Mo. Const. Art. I, 25 with Pa. Const. Art. I, 5. Missouri s constitution and statutes provide for the rapid filling of vacant offices of far less importance than that of a member of the General Assembly, and section 21.110 explicitly instructs the Governor to issue writs of election for legislative vacancies without delay, implying that the elections themselves should also be held as soon as possible. Although Missouri law does not spell out precisely when elections to fill legislative vacancies must be held, it should be plain that they do not authorize a governor to deny or unreasonably interfere, as this Governor has, with citizens right to legislative representation. 4 The Fagan court based its conclusion in part on Article I, section 5 of the Pennsylvania Constitution, which says, Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. This provision is virtually identical to Article I, section 25 of the Missouri Constitution. -9-

As noted above, the Governor s refusal to set elections to coincide with the soonest already-scheduled election has infringed several constitutional rights held by the Relators and their disenfranchised neighbors. Where the Governor s failure to discharge his constitutional duty impacts citizens constitutional rights, the courts should subject the Governor s action (or inaction, as the case may be) to strict scrutiny. This would require the Governor to justify the infringement on the citizens rights by first showing proof that the infringement is necessary to achieve a compelling state interest, and then by proving that the Governor s action (or inaction) is narrowly tailored to accomplish its intended result. In this case, it is plain that the Governor has artificially prolonged the period of time that 300,000 Missourians must go without proper legislative representation by refusing to schedule special elections for the soonest possible already-scheduled election. The Governor has attempted to justify this denial of the citizens rights by claiming that filling these legislative vacancies at the already-scheduled April 8 election would be too costly for the state when compared to the expense of filling the vacancies four months later. Under a strict scrutiny standard, the Governor would be allowed to present proof that the cost of holding special elections on April 8 would place such a burden on the state that it has a compelling interest in holding the special elections on August 5, and it would be up to this Court to weigh the interest the government has asserted against the deprivation of 300,000 Missourians right to legislative representation. But in fact the Governor has made no effort to quantify the savings he expects to realize by holding special elections in conjunction with the August 5, 2014, election -10-

rather than the April 8, 2014, election. If the Court is to countenance the idea that financial concerns create a compelling interest that might justify several months worth of denying citizens their constitutional rights (and the Relators in no way concede this point,) at a bare minimum the Governor should be required to explain his cost-benefit analysis. He must clearly identify whatever savings he believes will result from delaying special elections for another six months and also identify the monetary value that the Governor places on allowing 300,000 Missourians to have proper representation in the legislature during its regular session and any special session that might be called. 5 The Governor should also be required to explain why, as a practical matter, he believes it would be proper for local jurisdictions (as opposed to the state government) to bear the cost of a special election which the Governor himself necessitated. In the absence of any such explanation, this Court should rule that the Governor s delay and denial of citizens constitutional rights is not justified, and it should issue a writ of mandamus ordering the Governor to do his duty, and to schedule the special elections as soon as possible. 5 The Court should also require such a cost-benefit analysis to explain why the Governor was willing to hold special elections in April 2013 for vacancies the Governor created in the 76 th and 157 th Representative Districts, but deemed it unreasonable to use the alreadyscheduled elections in August 2013, November 2013, February 2014, or April 2014 to fill the vacancy that has existed in the 120 th Representative District since June 2013. -11-

V. CONCLUSION The Governor has a clear constitutional and statutory obligation to allow the Relators and their 300,000 neighbors the chance to elect new legislative representatives as soon as possible. This Court must not allow the Governor to continue depriving them of their fundamental constitutional rights. Respectfully submitted, David E. Roland Mo. Bar #60548 1432 Livingston Court NE Lacey, WA 98516 Phone: (314) 604-6621 Fax: (314) 720-0989 Email: libertyandjustice@gmail.com Attorney for Relators CERTIFICATE OF SERVICE I hereby certify that on February 21, 2014, a copy of the above and foregoing was filed electronically via Missouri CaseNet and served upon: James R. Layton Solicitor General Supreme Court Building P.O. Box 899 Jefferson City, Missouri 65102 Phone: (573) 751-1800 Fax: (573) 751-0774 James.layton@ago.mo.gov David Roland Attorney for Relators -12-