Did the Missouri AG approve the form of Damien Johnson's 2019 initiative petition to amend Article I of the Missouri Constitution?

Plain-English summary

Damien Johnson filed an initiative petition (numbered 2020-071) to amend Article I of the Missouri Constitution, which is the state's Bill of Rights. Under Missouri's initiative pipeline, the Secretary of State refers every filed petition to the AG to confirm the form complies with § 116.040 RSMo. The AG looked at this one and said no. The petition was rejected as to form, citing the form requirements of § 116.040 as the deficiency. The opinion does not list any other defects because once a petition fails the form test, the AG stops reviewing.

What this means in practice: the AG's job under § 116.332 is narrow. The AG does not weigh whether the substance of the proposed amendment is sound or constitutional. The AG just checks whether the document looks like the statute says it has to look (caption, enacting clause, signature blocks, page format, and so on). Section 116.040 lays out that template.

The Secretary of State, not the AG, has the last word. Section 116.332.4 RSMo expressly authorizes the Secretary of State to "make a final decision as to the approval or rejection of the form of the petition" after reviewing the AG's opinion. In practice the Secretary almost always follows the AG, and the standard response for a rejected proponent is to fix the form and refile.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is "sufficiency as to form" review?
A: It is the first gate in Missouri's initiative pipeline. Section 116.332 RSMo requires the Secretary of State to forward any filed petition to the Attorney General, who has 10 days to determine whether the petition complies with the statutory format. The check is mechanical. It compares the petition's layout, signature lines, and enacting language to the template in § 116.040 RSMo.

Q: What does § 116.040 require?
A: Section 116.040 RSMo prescribes the form of an initiative petition, including its enacting clause, its identification of the office where signatures are to be filed, and the specific certification language that signers must sign under. Petitions that omit any required element, or that change the prescribed wording, fail form review.

Q: What happens after the AG rejects the form?
A: Under § 116.332.4 RSMo the Secretary of State takes the AG's opinion and makes the final form decision. The Secretary may agree with the AG and reject the petition, in which case the proponent has to refile a corrected version. In rare cases the Secretary may disagree, but this is unusual because the AG's review is narrowly technical.

Q: Can the proponent fix the petition and try again?
A: Yes. There is no estoppel: a rejected proponent can file a corrected petition. Missouri sees many resubmissions for the same proposal as proponents iterate on form.

Q: What did the petition try to amend?
A: It proposed an amendment to Article I of the Missouri Constitution (Missouri's Bill of Rights). The AG opinion does not describe the substance, because once the form fails, substance review stops.

Q: Why doesn't the AG list specific defects?
A: Section 116.332 only requires the AG to identify "at least one" reason to reject. Once a fatal defect is found, the AG is not obligated to enumerate every other problem. The proponent has to assume there could be more.

Background and statutory framework

Missouri's initiative-and-referendum process is governed by Chapter 116 RSMo. The relevant gates in order:

1. Proponent drafts and files the petition with the Secretary of State.
2. Secretary of State forwards the petition to the Attorney General within 2 days.
3. AG reviews "sufficiency as to form" under § 116.332 RSMo (this opinion).
4. If approved, the State Auditor prepares a fiscal note and fiscal-note summary; AG reviews legal content and form under § 116.175.4 RSMo.
5. Secretary of State drafts an official ballot title (summary statement); AG reviews legal content and form under § 116.334 RSMo.
6. Petition is certified for circulation; signatures must be gathered by the constitutional deadline.

If the AG rejects at step 3, the petition typically dies unless the proponent refiles a corrected version. Section 116.332.4 RSMo preserves the Secretary of State's final decision authority on form.

Constitutional amendments in Missouri require signatures from 8% of the votes cast for governor in the most recent gubernatorial election, in two-thirds of Missouri's congressional districts (Mo. Const. art. III, § 50).

Citations and references

Statutes: § 116.040, RSMo (form requirements); § 116.332, RSMo (AG form review); § 116.332.4, RSMo (Secretary of State final decision).

Constitutional provisions referenced: Mo. Const. art. I (Bill of Rights, the subject of the proposed amendment); Mo. Const. art. III, § 50 (initiative).

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/94-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI

ERIC SCHMITT

June 27, 2019

OPINION LETTER NO. 94-2019

The Honorable John R. Ashcroft
Missouri Secretary of State
James C. Kirkpatrick State Information Center
600 West Main Street
Jefferson City, MO 65101

Dear Secretary Ashcroft:

This opinion letter responds to your request dated June 17, 2019, for our review under § 116.332, RSMo, of the sufficiency as to form of an initiative petition submitted by Damien Johnson (2020-071).

We conclude that the petition must be rejected for at least the following reason:

The petition is not in the form prescribed by § 116.040, RSMo.

Because of our rejection of the form of the petition for the reasons stated above, we have not reviewed the petition to determine whether additional deficiencies exist. Pursuant to § 116.332.4, RSMo, the Secretary of State is authorized to review this opinion and "make a final decision as to the approval or rejection of the form of the petition."

Very truly yours,

ERIC S. SCHMITT
Attorney General

Supreme Court Building
207 W. High Street
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-0774
www.ago.mo.gov

OP-2019-0111