Why did the Missouri AG reject Winston Apple's initiative petition 2020-040?

Plain-English summary

Winston Apple submitted initiative petition 2020-040 to amend Article III of the Missouri Constitution. The Secretary of State sent the petition to the AG for review under § 116.332, RSMo. This 2019 opinion is the AG's rejection of the form of that petition.

The reason for the rejection is one Missouri petitioners trip on regularly: § 116.050, RSMo, requires that every initiative petition show its amendments in a specific format. Deleted language must be enclosed in brackets and shown in its proper place. New language must be underlined. The format is the mechanism by which voters, legislators, and courts can quickly see exactly what the petition would change about existing law or the constitution. Apple's 2020-040 petition did not follow that format, so the AG rejected it. Because the form defect was facial, the AG declined to review the petition for any additional substantive or technical problems. Under § 116.332.4, the Secretary of State retains the final administrative decision on the rejection.

A proponent receiving a rejection like this typically refiles a corrected version. Apple did exactly that: a later "version 2" petition, 2020-046, was approved as to form in Op. Mo. Att'y Gen. 55-2019, indicating that the formatting issues were remediable. Apple also filed petition 2020-041, which was similarly rejected in Op. 49-2019 for the same § 116.050 defect.

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

What does § 116.050, RSMo, actually require?

Section 116.050 requires every initiative petition to display proposed changes in a specific way: deleted matter in brackets, new matter underlined, all shown in the proper place within the affected statutory or constitutional text. It is a drafting-formalities rule designed to make the legal effect of the petition immediately visible to anyone reading it.

Why does a small formatting issue trigger a full rejection?

Because the format is mandatory under § 116.050, and because it serves a substantive purpose: voters who sign the petition are supposed to know exactly what they are endorsing. A petition that does not show its changes in the required form fails to give that notice. The AG and Secretary of State treat the formatting rule as a threshold gating requirement.

Can the proponent fix the defect and refile?

Yes. The standard remedy for a § 116.050 defect is to refile a corrected version. Apple did so, eventually receiving form approval for his "version 2" petition 2020-046 (see Op. 55-2019).

Does this rejection mean the substantive proposal was bad?

No. The AG explicitly notes that the rejection on form grounds precluded review of the petition for additional deficiencies. The substantive proposal was never reviewed, so the rejection says nothing about whether the underlying constitutional amendment would have been sound policy or legally sustainable on the merits.

Who has the last word on form, the AG or the Secretary of State?

§ 116.332.4 gives the Secretary of State the final administrative decision. The AG's opinion is binding on the AG but advisory to the Secretary; the Secretary can disagree and either accept or reject the petition independently. In practice the AG and Secretary usually align, because both are applying the same statutory standard.

Background and statutory framework

Missouri's initiative process is in Chapter 116. § 116.332 governs AG form review; § 116.332.4 reserves final administrative authority to the Secretary of State. § 116.050 is the drafting-formalities rule that proponents must follow. The substantive amendment Apple proposed targeted Article III of the Missouri Constitution. The relevant constitutional framework for initiatives is Mo. Const. art. III, §§ 49 to 53.

Citations

• § 116.332, RSMo (AG form review of initiative petitions)
• § 116.332.4, RSMo (Secretary of State final authority on form)
• § 116.050, RSMo (mandatory drafting formalities: brackets for deletions, underlining for additions)
• Mo. Const. art. III (Legislative Department, subject of the amendment)
• Mo. Const. art. III, §§ 49 to 53 (initiative and referendum process)
• Initiative Petition 2020-040 (Apple, Article III; rejected for form)
• Op. Mo. Att'y Gen. 49-2019 (Apple 2020-041, similarly rejected for form)
• Op. Mo. Att'y Gen. 55-2019 (Apple 2020-046 "version 2," approved as to form)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/48-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT
JEFFERSON CITY
P.O. Box 899
ATTORNEY GENERAL
65102
(573) 751-3321

February 8, 2019

OPINION LETTER NO. 48-2019

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 January 31, 2019, for our review under § 116.332, RSMo, of the sufficiency as to form of an initiative petition submitted by Winston Apple (2020-040).

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

The petition does not contain "all matter which is to be deleted included in its proper place enclosed in brackets and all new matter shown underlined" as required pursuant to § 116.050, 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

OP-2019-0038