Emily Omohundro vs. Denny Hoskins, Missouri Secretary of State, et al.

EMILY OMOHUNDRO, ) ) Appellant, ) ) v. ) WD88567 ) DENNY HOSKINS, MISSOURI ) Opinion filed: January 29, 2026 SECRETARY of STATE, et al., ) ) Respondents. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI HONORABLE COTTON WALKER

Before Special Division: Mark D. Pfeiffer, Presiding Judge, Thomas N. Chapman, Judge and W. Douglas Thomson, Judge

Emily Omohundro ("Omohundro") appeals the judgment of the trial court approving the summary statement of an initiative petition ballot title. The initiative petition broadly seeks to prevent public funds from being used to benefit nonpublic schools. Omohundro asserts the trial court erred in finding the summary statement was sufficient and fair. We agree and certify to the Secretary of State ("Secretary") an alternative statement for inclusion on the ballot.

2

Factual and Procedural Background On July 7, 2025, an initiative petition was submitted to the Secretary which sought to amend Article IX of the Missouri Constitution by adopting a new Section 11 (the "Initiative"). The Initiative is titled "Constitutional Amendment to Article IX, Relating to Public Funding for Education 2026-071" and is set out in its entirety below. Section 11. State and local public school funds may be used only for public schools. (a) Public funds shall not be used in any way that benefits nonpublic schools unless such benefits are equally available to the general public. No person or organization shall receive public aid, directly or indirectly, for educational services provided by a nonpublic school. (b) Public funds or public aid may, however, be used to pay private individuals or entities for educational or other services to be provided to individuals with disabilities, as defined by law. (c) The state or a local government may accept federal funds and distribute them to nonpublic schools if no state or local public funds are used to supplement those federal funds. (d) Definitions. The following definitions apply to this section: (1) "Public funds" are any funds received or controlled by the state, state agencies, the general assembly, local governments, or any state or local public entity. (2) "Public aid" includes any form of public financial assistance, benefit, reimbursement, or credit from the state, state agencies, the general assembly, local governments, or any state or local public entity, including but not limited to vouchers, tax credits, education savings accounts, scholarships, or any other form of financial support. (3) "School" means any institution of learning serving students at any grade level kindergarten through twelfth grade. This definition does not include home schools serving four or fewer children who are not related to one another within the third degree by blood or marriage.

3

(4) "Nonpublic school" includes any school that provides in person instruction and is not directly controlled by a public school district, a public state university or the state. A public charter school is a nonpublic school unless it was approved by the State Board of Education or a locally elected school board prior to June 30, 2025, or is approved by the voters of the public school district in which the charter school operates and is sponsored by the locally elected school board. The Secretary certified the official ballot title for the Initiative on August 15,

1. "An official ballot title consists of a summary statement prepared by the

Secretary of State and a fiscal note summary prepared by the State Auditor." 1 Fitz- James v. Ashcroft, 678 S.W.3d 194, 199 (Mo. App. W.D. 2023) (citing Boeving v. Kander, 493 S.W.3d 865, 871 (Mo. App. W.D. 2016)). The summary statement asked Missouri voters: Shall the Missouri Constitution be amended to: • Limit parental choice in education; • Eliminate existing programs that provide direct aid to students with special education needs by prohibiting the use of public funds for educational services provided by nonpublic schools; • Restrict public aid at private schools; • Bar public funding from supplementing federal aid to nonpublic schools; and • Define most charter schools as nonpublic unless approved by voters or school boards before June 30, 2025, with limited exceptions for disability services?

Omohundro filed suit against the Secretary in the Circuit Court of Cole County on August 22, 2025, alleging that bullet points one, two, and five of the

1 The fiscal note summary is not at issue in this appeal.

4

summary statement portion of the ballot title were insufficient or unfair. Rebecca Uccello ("Uccello") sought leave to intervene based on her status as a Missouri taxpayer, her employment with the American Federation for Children, her role as the mother of a disabled child, and her opposition to the Initiative. The trial court granted such leave. 2 Uccello and the Secretary are collectively referred to as the "Respondents." Following a bench trial, the trial court entered an order on October 22, 2025, finding the first four bullet points of the summary statement to be sufficient and fair and the fifth bullet point to be insufficient and unfair. The trial court also noted the fifth bullet point appeared to contain a drafting error and returned the measure to the Secretary. The Secretary then submitted a first revised summary statement 3

2 Uccello's intervention is also not at issue in this appeal. 3 Of note, the Missouri Supreme Court recently handed down Nicholson v. State, No. SC101308, --- S.W.3d---, 2026 WL 202013 (Mo. banc Jan. 23, 2026). Nicholson struck down as unconstitutional Senate Bill No. 22 ("SB 22"), which was enacted by the General Assembly and signed into law by the Governor in 2025. SB 22, among other things, amended section 116.190 which sets out the process under which courts review ballot summary language. As relevant here, SB 22 required the trial court to order the Secretary to rewrite the summary statement if the court found the original language to be insufficient or unfair. As SB 22 is invalidated, section 116.190 no longer contains a mechanism explicitly allowing the Secretary to revise the summary statement. Nicholson, t he invalidity of SB 22, and the resulting change to section 116.190 do not substantively affect our disposition of this case. First, when the litigation before the trial court was pending, and when the trial court issued its judgment certifying the Secretary's first revised summary statement ballot title, SB 22 was presumed valid. State v. Vrba, 638 S.W.3d 604, 607 (Mo. App. S.D. 2022) ("All statutes are presumed constitutional." (quoting State v. Barnett, 598 S.W.3d 127, 129 (Mo. banc 2020))). Further, no party before the trial court here challenged the constitutionality of SB 22. Second, retroactive application of Nicholson to this case would defeat the overall legislative purpose of section 116.190, which is to allow any citizen to challenge the sufficiency and fairness of a ballot title. This Court is reviewing the summary statement as certified by the trial court, not the summary statement as certified by the Secretary. While the Secretary certified the original summary language, the trial court certified the

5

which provides: Shall the Missouri Constitution be amended to: • Limit parental choice in education; • Eliminate existing programs that provide direct aid to students with special education needs by prohibiting the use of public funds for educational services provided by nonpublic schools; • Restrict public aid at private schools; • Bar public funding from supplementing federal aid to nonpublic schools with limited exceptions for disability services; and • Define charter schools founded after June 30, 2025 as nonpublic schools, with limited exceptions. In brief, the Secretary added the final prepositional phrase regarding disability services to bullet point four and streamlined bullet point five. Bullet points one, two, and three were not revised. The trial court entered judgment on December 9, 2025, finding the Secretary's first revised summary statement sufficient and fair, certifying the summary, and ordering the Secretary to include it in the official ballot title for initiative 2026-071. Omohundro appeals.

first revised summary statement, thus it is the trial court's language that is before us on appeal. Section 116.190.4 functions substantively the same with or without SB 22: the trial court is required to find either that the Secretary's certified summary is sufficient and fair or certify its own rewritten summary statement. If appealed, we then review the final ballot title approved by the trial court utilizing the same sufficiency and fairness standard. Finally, even without SB 22's mandate that the trial court allow the Secretary to revise the summary statement, a trial court is permitted to ask parties to submit proposed revised summary statement language if the trial court finds the original language is insufficient or unfair. Whether phrased as a proposed judgment or a revised summary statement, the trial court then decides whether or not to certify such language and renders its final judgment for the purpose of appeal. All statutory references are to RSMo 2016, as supplemented, unless otherwise noted.

6

Section 116.190.5 requires any action brought under the section to be "fully and finally adjudicated within one hundred eighty days of filing," including all appeals, unless good cause is shown for an extension. This action was filed on August 22, 2025. We have, therefore, substantially expedited the briefing schedule and the disposition of this appeal. Standard of Review Because this appeal does not present any factual disputes, our review is de novo. "De novo review of the trial court's legal conclusions about the propriety of the [Secretary's] summary statement . . . is the appropriate standard of review when there is no underlying factual dispute that would require deference to the trial court's factual findings." Brown v. Carnahan, 370 S.W.3d 637, 653 (Mo. banc 2012). Analysis Omohundro raises only one point on appeal, challenging the second bullet point of the Secretary's summary statement. She asserts the trial court erred in finding the summary statement sufficient and fair because it contradicts the plain language of the Initiative. The second bullet point did not change from the Secretary's original summary statement, to which Omohundro initially objected, to the first revised summary statement. Thus, the issue is preserved. General Principles Regarding Summary Statements The Secretary is tasked with preparing a summary statement for initiative petitions that does not exceed 100 words and is "in the form of a question using

7

language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." Section 116.334.1. "Missouri citizens are authorized to seek judicial review of the official ballot title if the citizen believes the summary statement portion of the ballot title is 'insufficient or unfair.'" Hill v. Ashcroft, 526 S.W.3d 299, 308 (Mo. App. W.D. 2017) (citing Section 116.190.3). "Insufficient means inadequate; especially lacking adequate power, capacity, or competence. The word 'unfair' means to be marked by injustice, partiality, or deception." Copenhaver v. Ashcroft, 697 S.W.3d 601, 606 (Mo. App. W.D. 2024) (internal quotation marks and citation omitted) (quoting Pippens v. Ashcroft, 606 S.W.3d 689, 701 (Mo. App. W.D. 2020)). The challenger bears the burden of demonstrating the summary is insufficient or unfair. Id. The summary statement must "accurately reflect the legal and probable effects of the proposed initiative" and "inform voters of the central feature[s] of the initiative." Brown, 370 S.W.3d at 654; McCarty v. Mo. Sec'y of State, 710 S.W.3d 507, 515 (Mo. banc 2025) (alteration in original). It is "intended to give voters enough information to be aware of the proposal's subject and purpose to allow voters to make an informed decision as to whether to investigate the initiative further." McCarty, 710 S.W.3d at 518 (citing Hill, 526 S.W.3d at 308). "The idea is to advise the citizen what the proposal is about." Pippens, 606 S.W.3d at 702 (citation omitted). "[T]he critical test is whether the language fairly and impartially summarizes the purposes of the measure so that voters will not be deceived or misled."

8

Copenhaver, 697 S.W.3d at 609 (quoting Sedey v. Ashcroft, 594 S.W.3d 256, 263 (Mo. App. W.D. 2020)). "Missouri courts have regularly cautioned restraint in the modification of summary statements and have indicated that modifications should be made in the most limited fashion possible." Id. (quoting Fitz-James, 678 S.W.3d at 214). Appellant's Claim on Appeal In her sole point on appeal, Omohundro alleges the Secretary's summary statement "reverses the meaning of the Initiative Petition by stating that the measure 'eliminates' aid for students with disabilities even though the Petition expressly preserves funding for such services, thereby misleading voters." We agree. Paragraph (a) of the Initiative broadly prohibits the use of public funds or public aid in nonpublic schools, stating: "Public funds shall not be used in any way that benefits nonpublic schools unless such benefits are equally available to the general public. No person or organization shall receive public aid, directly or indirectly, for educational services provided by a nonpublic school." The Initiative's paragraph (a) is followed by paragraph (b) which provides, "Public funds or public aid may, however, be used to pay private individuals or entities for educational or other services to be provided to individuals with disabilities, as defined by law." The parties largely dispute the effect that paragraph (b) has on paragraph (a). Omohundro reads paragraph (b) as creating an exception to paragraph (a)'s

9

prohibition against using public funds to benefit nonpublic schools, such that public funds could be used for disability-related services at nonpublic schools. She argues that paragraph (b) "expressly preserves the mechanisms for funding in- person private school for disabled students." Respondents, on the other hand, argue that paragraph (b) is not an exception to paragraph (a) at all, and even if it is, it would not allow various state programs which benefit nonpublic schools to exist in their current form. 4

First, it is clear that paragraph (b) functions as an exception to paragraph (a). The plain language of paragraph (b) demonstrates why this is so. Again, paragraph (b) provides: "Public funds or public aid may, however, be used to pay private individuals or entities for educational or other services to be provided to individuals with disabilities, as defined by law." (emphasis added). The word "however" is telling in this regard, as it "immediately suggests there will be exceptions[.]" Pro. Firefighters E. Mo., Int'l Ass'n Firefighters, Loc. 2665 v. City of Univ. City, 512 S.W.3d 842, 846 (Mo. App. E.D. 2017). Courts have further given

4 The Secretary suggests the Initiative will have dramatic effects on the Missouri Empowerment Scholarship Accounts Program ("MOScholars") and the Missouri MOST 529 Education Plan ("MOST"). MOScholars is a tax credit program which provides support to students who have an approved individualized education plan or who are members of certain low-income households. Section 166.700(9). Eligible students may receive scholarship funds to pay for enumerated educational expenses, including tuition and fees at a private school. Sections 166.705(4)(a), 166.700(8)(b). The MOST program is a 529 qualified tuition program exempt from some taxation, and available to all students regardless of income or disability. 26 U.S.C. § 529; Sections 166.400-166.456. MOST accounts can be used for educational expenses at nonpublic schools. 26 U.S.C. § 529(c)(7); Section 166.410(10). To address the question before us, we need not decide the Initiative's effect on these or any other particular program, and therefore do not render such a determination.

10

specific meaning to the word, noting that "'However' is commonly understood to be synonymous with words and expressions such as 'notwithstanding,' 'in all events,' and 'in any case, nevertheless.'" Id. (quoting Niswonger v. Farm Bureau Town & Country Ins. Co. of Mo., 992 S.W.2d 308, 322 n.7 (Mo. App. E.D. 1999)); see also Lonergan v. May, 53 S.W.3d 122, 130 (Mo. App. W.D. 2001) ("'Provided, however' can also be interpreted as a proviso that qualifies as an exception to a statute." (emphasis added) (citation omitted)). Supportive of our caselaw meaning of "however" is the common definition found in the dictionary. There, the definition of "however" is a word "used to introduce a statement that contrasts with or seems to contradict something that has been said previously." Pro. Firefighters E. Mo., 512 S.W.3d at 846 (quoting Oxford English Dictionary). And notably, when read by itself, paragraph (a) does not preclude exceptions. See id. ("The first sentence, read by itself, even though it contains the word "will," does not necessarily preclude any exceptions."). Thus, because of the Initiative's use of the word "however," paragraph (b) can only be read plausibly as an exception to paragraph (a)'s prohibition against using public funds to benefit nonpublic schools. 5 Where paragraph (a) specifically excludes public funds or aid to nonpublic schools, paragraph (b) provides an exception for

5 The Intervenor in this case, Uccello, has expressed agreement with this logic in her brief, arguing that, "If subsection (b) was meant to function as Omohundro argues, one would expect to see language like 'notwithstanding subsection (a) of this section' or something similar to signal that subsection (b) is not in conflict with subsection (a)." (emphasis added). The word "however" functions as the "something similar" Uccello was looking for as Missouri courts have found "however" and "notwithstanding" to be synonyms. Pro. Firefighters E. Mo., 512 S.W.3d at 846 (citation omitted).

11

such moneys to be used to pay "private individuals or entities" for services to "individuals with disabilities." Accordingly, paragraph (b) is an exception designed to protect "individuals with disabilities." Hence, we refer to subsection (b) as "the Disability Exception" hereinafter. 6

Second, we turn to Omohundro's argument that paragraph (b) of the Initiative "expressly preserves the mechanisms for funding in-person private school for disabled students." 7 (emphasis added). The Initiative's Disability Exception allows "public funds or public aid" to pay "private individuals or entities for educational or other services to be provided to individuals with disabilities, as defined by law." (emphasis added). Thus, the relevant question is whether nonpublic schools fall within the scope of the term "private . . . entities," as used in the Disability Exception. If so, then nonpublic schools could be paid for their services as stated therein. "Entities" is a very broad term. Merriam-Webster defines "entity" in the relevant sense as, " an organization (such as a business or governmental unit) that

6 In addition to our comments in the previous footnote where the Intervenor seems to support Omohundro's argument, bullet point four of the Secretary's summary statement also implicitly acknowledges that paragraph (b) is an exception to paragraph (a). Bullet point four provides that the Initiative will, "Bar public funding from supplementing federal aid to nonpublic schools with limited exceptions for disability services." The only place in the Initiative that references an exception for disability services is paragraph (b). Thus, the Secretary's use of the phrase "with limited exceptions for disability services" recognizes that the funding prohibition in (a) is limited by (b). 7 For our purposes, we interpret Omohundro's "private school" argument as whether funding is preserved for "nonpublic schools" because, based on the Initiative's definition of nonpublic school at subparagraph (d)(4), private schools would fall into that category.

12

has an identity separate from those of its members." 8 The Missouri Supreme Court has similarly noted its breadth, stating that, "[t]he phrase incorporated and non- incorporated entities, therefore, could refer to anything; it is difficult to imagine a broader phrase that could be employed . . . ." St. Louis Health Care Network v. State, 968 S.W.2d 145, 147 (Mo. banc 1998). Such a phrase could "describe any legislation that 'affects, in any way, businesses, charities, civic organizations, governments, and government agencies.'" Mo. Coal. for Env't v. State, 593 S.W.3d 534, 541-42 (Mo. banc 2020) (quoting St. Louis Health Care Network, 968 S.W.2d at 148). Turning to the Initiative, "nonpublic school" is defined in subparagraph (d)(4), in relevant part, as "any school that provides in person instruction and is not directly controlled by a public school district, a public state university or the state." This definition fits easily into the broad definition of an "entity" recognized by our courts, as well as the dictionary definition of the term. Thus, the phrase "private individuals or entities" in paragraph (b) is sufficiently broad to encompass "nonpublic schools" and the Disability Exception is therefore applicable to nonpublic schools. What we are left with then, is a Disability Exception that permits nonpublic schools to be paid from public funds and public aid for services provided to individuals with disabilities. Thus, it is evident the second bullet point of the

8 Entity, Merriam-Webster Online Dictionary, https://www.merriam- webster.com/dictionary/entity (last visited Jan. 28, 2026).

13

Secretary's summary statement does not accurately reflect the Disability Exception. The summary states that the Initiative will, "Eliminate existing programs that provide direct aid to students with special education needs by prohibiting the use of public funds for educational services provided by nonpublic schools." It therefore becomes apparent that the summary statement is misleading in that it implies that programs designed to aid students with special education needs will be eliminated. At a minimum, the phrase "special education needs" is not found in the Initiative. 9 Most importantly, while funding for state programs that benefit nonpublic schools will certainly be affected by the Initiative, the language used in bullet point two erroneously suggests that programs for students with disabilities would be de-funded. 10 That simply is not accurate. Thus, the summary statement does not reflect the "legal and probable effects of the proposed initiative." Brown, 370 S.W.3d at 654. The failure to account for the Disability Exception in bullet point two—and instead state that special education programs would be eliminated—is insufficient and unfair. This can be remedied by removing the reference to special education needs and adding a reference to the Disability Exception.

9 The parties dispute the scope of the phrase "individuals with disabilities," as used in the Initiative, compared to the phrase "special education needs," as used in the summary statement. It is unnecessary for us to resolve this debate beyond noting that we can envision a situation where the two phrases are not synonymous. As discussed below, we have removed the reference to "special education needs" and instead used the term "disabled" to better reflect the language of the Initiative itself. 10 See note 4, supra.

14

Next, the second bullet point's statement that it will "eliminate existing programs" is misleading. It is necessary to alter this phrase for two reasons. First, the Initiative does not reference any existing program. Instead, the Initiative focuses exclusively on state expenditures. While the Initiative may limit the scope of some state programs, it does nothing to address the constitutionality of any program as a whole. Second, how the Initiative would impact or "eliminate" existing programs is beyond the breadth of this appeal. "To opine on the validity or effect of an initiative petition prior to its passage by the voters would require us to give an advisory opinion, which we cannot do." Hill, 526 S.W.3d at 321. Thus, we have replaced the phrase "eliminate existing programs" with "eliminate certain expenditures." This change more clearly states what the Initiative prohibits instead of how that prohibition will impact existing programs. After the incorporation of the two aforementioned changes, the second bullet point states: Eliminate certain expenditures that provide direct or indirect aid to students for their educational needs by prohibiting the use of public funds for educational services provided by nonpublic schools, except for services provided to disabled students. One will note that we have included "indirect aid" in our revised summary statement. As originally written, bullet point two of the summary statement only referred to programs providing "direct aid," whereas paragraph (a) of the Initiative prohibits the receipt of public aid "directly or indirectly, for educational services provided by a nonpublic school." Thus, in light of the fact that the Initiative does

15

not focus solely on direct aid, we revised bullet point two so that it refers not only to "direct aid" but also to "indirect aid." Finally, we note that the Secretary's first revised summary statement replaced the question mark at the end of the summary with a period. Section 116.334.1 requires that the summary statement "be in the form of a question[.]" See McCarty, 710 S.W.3d at 512 ("[T]he [Secretary] must draft a summary statement of the measure in the form of a question[.]"). Thus, we have replaced the period at the end of the summary with a question mark. Certified Summary Statement Rule 84.14 11 permits us to step into the shoes of the trial court and certify alternative summary language to the Secretary. Fitz-James, 678 S.W.3d at 216. Thus, we certify the following summary statement to the Secretary for inclusion in the official ballot title for initiative petition 2026-071. Shall the Missouri Constitution be amended to: • Limit parental choice in education; • Eliminate certain expenditures that provide direct or indirect aid to students for their educational needs by prohibiting the use of public funds for educational services provided by nonpublic schools, except for services provided to disabled students; • Restrict public aid at private schools; • Bar public funding from supplementing federal aid to nonpublic schools with limited exceptions for disability services; and • Define charter schools founded after June 30, 2025 as nonpublic schools, with limited exceptions?

11 All rule references are to the Missouri Supreme Court Rules (2025).

16

Conclusion The trial court's judgment is reversed. We certify the revised summary statement to the Secretary of State.

______________________________ W. DOUGLAS THOMSON, JUDGE All concur.