Appeals court OKs pot measure, leaves health officials in lurch

In politically salient back-to-back rulings, the Missouri Court of Appeals Western District on Sept. 12 and 13 cleared the way for a recreational marijuana measure to appear on the November ballot and left in place a circuit court ruling that limits the ability of local health authorities to respond to the pandemic.

To get the marijuana measure on the ballot, proponents were required to gather signatures from eight percent of voters in at least six of the state’s eight congressional districts. Local election authorities initially determined that some of the signatures were invalid, but the Secretary of State’s Office re-examined them and found sufficient signatures for the measure to proceed.

The challenging lawsuit argued that Secretary of State Jay Ashcroft had no authority to override the local authorities’ determinations. But the Western District held that there was “no clear, unequivocal, or unambiguous statutory provision” that prevented it.

“The people’s initiative power would be impeded by such an inference, since supporters of an initiative who bear no fault for a local election authority’s erroneous designation of their signatures as invalid would be deprived of a voice,” the court wrote.

The Missouri Supreme Court declined to take the case.

The second case stems from a November ruling in Cole County Circuit Court that invalidated Department of Health and Senior Services provisions that had allowed county health officers to issue rules during the COVID-19 virus pandemic, such as prohibiting gatherings of people and instituting mask mandates. Judge Dan Green found the regulations had unlawfully delegated legislative authority and violated the separation of powers.

Attorney General Eric Schmitt declined to appeal the case, instead sending warnings to counties across the state that they needed to follow the court’s ruling. Several counties then sought to intervene so that they could appeal instead. 

But the Western District noted that the highly publicized case was pending for 11 months before judgment was entered, giving the counties ample time to try to proceed. The announcement that there would be no appeal should not have come as a surprise, the appeals court said, as Schmitt had taken legal action against many of those same counties for their responses to the pandemic.

“It seems disingenuous to argue that intervention must be allowed after judgment because Attorney General Schmitt unexpectedly declined to appeal the judgment,” the court said.

The cases are Sweeney v. Ashcroft, WD85679, and Robinson v. Missouri Department of Health and Senior Services, WD85070. 

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