Spencer Todd vs. Denny Hoskins, In His Official Capacity as the Missouri Secretary of State; Rebecca Uccello

SPENCER TODER, ) ) Appellant-Respondent, ) ) ) WD88582 V. ) consolidated with WD88585 ) DENNY HOSKINS, ) OPINION FILED: IN HIS OFFICIAL CAPACITY ) JANUARY 29, 2026 AS THE MISSOURI SECRETARY ) OF STATE, Respondent; ) ) REBECCA UCCELLO, ) ) Respondent-Appellant. )

Appeal from the Circuit Court of Cole County, Missouri The Honorable Christopher Kirby Limbaugh, Judge

Before Special Division: Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and Cynthia L. Martin, Judge

Spencer Toder appeals the judgment of the Circuit Court of Cole County, Missouri ("trial court"), certifying the Secretary of State's ("Secretary") Second Revised Summary Statement regarding a proposed ballot initiative on the subject of public education as sufficient and fair per Section 116.190.4(2)(c). 1 On appeal, Toder claims that the trial

1 Because the Missouri Supreme Court struck down SB 22 (2025), see, infra, n. 3, we will use the version of the Missouri Revised Statutes in effect in 2024, unless we are

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court abused its discretion in granting Rebecca Uccello permission to intervene pursuant to Rule 52.12(b)(2); 2 he also argues that Uccello has failed to show that she has a sufficient interest in the subject matter of the litigation to trigger a right to intervene under Rule 52.12(a). Uccello cross-appeals, claiming that the trial court erred in finding the Secretary's Second Revised Summary Statement was sufficient and fair and that Toder failed to establish that he had standing to challenge the ballot title. We find that the trial court abused its discretion in allowing Uccello to intervene, and we accordingly dismiss Uccello's appeal. Because Uccello was the only party challenging the trial court's certification of the Secretary's Second Revised Summary Statement on appeal, we affirm the judgment finding the Second Revised Summary Statement to be fair and sufficient. Factual and Procedural Background On July 3, 2025, Toder, a Missouri citizen, submitted to the Secretary a proposed initiative petition to amend Article IX, section 1(a) of the Missouri Constitution pursuant to Article III, section 49 of the Missouri Constitution and Chapter 116 of the Revised Statutes of Missouri. The proposed amendment to Article IX, section 1(a) is as follows, with additions to the current text of the constitution underlined and omissions bracketed. A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people[,]; education shall be a fundamental right. It shall be the duty of the state and general assembly [shall] to establish and maintain adequate, thorough, and uniform high quality free public schools to provide for the gratuitous instruction of all

referring specifically to the version of the statutes temporarily in effect during the proceedings before the trial court, which will be referenced with the (2025) parenthetical. 2 All rule references are to the Missouri Supreme Court Rules (2025).

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persons in this state within ages not in excess of twenty-one years as prescribed by law.

On August 11, 2025, the Secretary certified the official ballot title. The Secretary's official ballot title read: Shall the Missouri Constitution be amended to: • Potentially eliminate existing state scholarship programs that provide direct aid to students with disabilities and low-income families; • Create a new fundamental right to an equitable and adequate public education that would be enforced through lawsuits filed in court; • Mandate that the State of Missouri establish and maintain adequate, thorough, and uniform high quality free public schools, regardless of the cost, for all persons in the state twenty-one years old or younger; and • Prevent the State from supporting educational choices other than free public schools?

On August 18, 2025, Toder sued the Secretary in the Cole County Circuit Court to challenge the official ballot title. Toder's petition alleged that the Secretary's first and fourth bullet points were "deceptive and prejudicial" in that they described consequences that were not central or probable effects of the proposed constitutional amendment and appeared to be intentionally designed to prejudice voters against the proposal. Uccello moved to intervene as a matter of right under Rule 52.12(a) or, in the alternative, for permissive intervention under Rule 52.12(b)(2). Uccello alleged in her motion that she was employed by the American Federation for Children, which advocates for children with disabilities; that she intended to campaign against the initiative if it were placed on the ballot; and that her daughter benefits from the Missouri Empowerment Scholarship Program ("MOScholars Program"), which, Uccello alleged, would be eliminated if the amendment were adopted. Uccello alleged that her grounds for

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intervention were so she could "defend the language of the summary statement" and weigh in on any revisions; Uccello sought to have the Secretary's summary certified as it stood. Toder objected, arguing that, under Prentzler v. Carnahan, 366 S.W.3d 557 (Mo. App. W.D. 2012), Uccello lacked an interest sufficient to support intervention as a matter of right, and that she had no claim or defense in common with the underlying action to warrant permissive intervention. The trial court heard argument on September 16 and again on September 30. Toder again argued that Uccello's intervention was not legally supportable and that her participation as an amicus curiae would be more appropriate. Uccello responded that she and her daughter had an "interest in the outcome of the ballot measure," and that, for purposes of permissive intervention, she had "a defense as to the fairness and sufficiency of the summary statement." The trial court granted permissive intervention for Uccello. The matter was tried by the parties on documentary evidence. Toder then argued that, unlike in many other ballot summary cases, where the Secretary is tasked with condensing the most central purposes and effects of a lengthy proposed initiative, here the proposed amendment is very short and aspirational, and the first and fourth bullet points of the Secretary's summary were not tied to language in the proposed amendment and did not reflect probable effects of the proposed amendment should it be adopted. Rather, they were speculative. The Secretary and Uccello then gave their respective arguments; each was consistent and in support of the other's arguments. No party challenged the second and third bullet points of the Secretary's summary statement.

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The trial court found, pursuant to section 116.190, that the Secretary's first and fourth bullet points were unfair and insufficient and returned the summary statement to the Secretary for revision. 3 Section 116.190.4(2)(a) Mo. Rev. Stat. (2025). On December 9, 2025, the Secretary submitted its First Revised Summary Statement. It read: Shall the Missouri Constitution be amended to:

• Change existing state scholarship programs that provide direct aid to students with disabilities and low-income families; • Create a new fundamental right to equitable and adequate public education that would be enforced through lawsuits filed in court; • Mandate that the State of Missouri establish and maintain adequate, thorough, and uniform high quality free public schools, regardless of the cost, for all persons in the state twenty-one years or younger; and • Limit the State's ability to fund educational choices other than free public schools?

3 On January 23, 2026, the Missouri Supreme Court handed down Nicholson v. State, No. SC 101308, 2026 WL _____, (Mo. banc Jan. 23, 2026), which struck down as unconstitutional Senate Bill No. 22 (SB22), passed by the Missouri General Assembly and signed by the Governor in 2025, in which the ballot title certification procedure was amended to allow the Secretary opportunities to revise proposed ballot title summaries for circuit court approval. When the litigation before the trial court was pending, and when the trial court issued its judgment certifying the Secretary's Second 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."). In addition, no party before the trial court challenged the constitutionality of SB 22, and the trial court ultimately found the Secretary's Second Revised Summary Statement was sufficient and fair. Retroactive application of Nicholson to this case would defeat the legislative purpose of section 116.190, which is to allow any citizen to challenge the sufficiency and fairness of a ballot title. Thus we treat the trial court's judgment as a valid final judgment for purposes of this appeal. Whether under the provision of SB22 or under the statutory procedure in effect prior to its passage, it is for this Court to review the sufficiency and fairness of the final ballot title approved by the trial court. Nicholson thus has no substantive effect on our result in this case.

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Uccello filed a trial brief in support of the Secretary's First Revised Summary Statement. Toder again raised a challenge to the sufficiency and fairness of bullet points one and four. No party challenged bullet points two or three. On December 15, 2025, the trial court found the revised fourth bullet point to be sufficient and fair, but again found the first bullet point to be insufficient and unfair. The trial court again returned the summary statement to the Secretary for revision pursuant to section 116.190.4 (Mo. Rev. Stat. 2025). On December 19, 2025, the Secretary submitted a Second Revised Summary Statement that eliminated all reference to scholarship programs. It read: Shall the Missouri Constitution be amended to: • Create a new fundamental right to an equitable and adequate public education that would be enforced through lawsuits filed in court; • Mandate that the State of Missouri establish and maintain adequate, thorough, and uniform high quality free public schools, regardless of the cost, for all persons in the state twenty-one years old or younger; and • Limit the State's ability to fund educational choices other than free public schools?

Uccello filed her objections to the Second Revised Summary Statement alleging it was insufficient and unfair because it failed to include a bullet point regarding the effect of the adoption of the amendment on the MOScholars Program; she did not adduce any evidence at the hearing or suggest substitute language. Toder raised no objections to the sufficiency or fairness of the Secretary's Second Revised Summary Statement. On December 23, 2025, the trial court held a hearing on the sufficiency and fairness of the Second Revised Summary Statement and entered a final judgment that found the

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Secretary's Second Revised Summary Statement sufficient and fair and certified it to appear on the ballot. These cross-appeals follow. 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 18, 2025. We have, therefore, substantially expedited the briefing schedule and the disposition of this appeal. On appeal Uccello argues the trial court erred in certifying the Secretary's Second Revised Summary Statement because it is insufficient and unfair. On appeal, Toder argues the trial court erred in granting Uccello's motion to intervene in the underlying action. Standard of Review "A trial court's decision regarding intervention as a matter of right will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Johnson v. State, 366 S.W.3d 11, 20 (Mo. banc 2012). We review permissive intervention for abuse of discretion. Id. A trial court abuses its discretion when its ruling "is clearly against the logic of the circumstance, is arbitrary and unreasonable, and indicates a lack of careful consideration." Green v. Fred Weber, Inc., 254 S.W.3d 874, 880 (Mo. banc 2008) (abuse of discretion found where the ruling lacked an evidentiary basis). A trial court also abuses its discretion when "its decision rests on a misunderstanding of law." Stidham v. Stidham, 136 S.W.3d 74, 78 (Mo. App. W.D. 2004).

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Analysis We begin by addressing Toder's points on appeal, because the resolution of those points directly effects whether Uccello may even raise her points on appeal. Toder brings two points on appeal, the first argues the trial court erred in granting Uccello permissive intervention, and his second point on appeal argues, in the alternative, that Uccello had no basis for intervention as a matter of right in this action. Permissive intervention The trial court granted Uccello's motion to intervene under Rule 52.12(b)(2)'s permissive intervention. Toder's first point on appeal is that the trial court erred in granting permissive intervention because Uccello did not have a claim or defense with an issue of fact or law in common with the underlying section 116.190 litigation as required by Rule 52.12(b)(2). We agree. Rule 52.12(b)(2) provides that a trial court may permit a party to intervene when her "claim or defense and the main action have a question of law or fact in common." Johnson, 366 S.W.3d at 21. "Proposed intervenors are not entitled to permissive intervention if they simply will reassert the same defenses, but intervention can be appropriate when the intervenors can show interest unique to themselves." Id. (citation modified) (emphasis in original). This Court must confine its review of permissive intervention under Rule 52.12(b) to considering whether the trial court's ruling was an abuse of discretion because it was "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and

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indicate a lack of careful consideration." State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 131 (Mo. banc 2000)." Id. (emphasis added). At the time she filed her motion to intervene Uccello asserted the same defenses to Toder's action as did the Secretary, and indeed, she advocated for the exact wording the Secretary originally proposed. Her motion to intervene specifically alleged that her grounds for intervention were so she could "defend the language of the summary statement" and weigh in on any revisions. In her brief, Uccello acknowledges that her interests and the Secretary's were "aligned" in defending the Secretary's original Summary Statement and the Secretary's First Revised Summary Statement. Uccello sought to have the Secretary's summary certified as it was originally drafted. Section 116.190.1 specifically provides that a "citizen who wishes to challenge the official ballot title" can file an action. (emphasis added). Per section 116.190.2, when the Secretary's proposed ballot title (summary) is challenged in court, the Secretary becomes the "party defendant," and his charge is to defend his proposed title summary or submit a revised summary the court finds acceptable. See section 116.190.4. Section 116.190 does not give private parties who support the Secretary of State's summary statement any role in litigation concerning the summary statement's fairness and sufficiency; the only parties identified in section 116.190 are those persons challenging the summary statement, and the Secretary as defendant. As a general rule, "when the legislature has established other means of enforcement, [a court] will not recognize a private civil action [or defense] unless such appears by clear implication to have been the legislative intent." Sullivan v. City of Univ. City, 677 S.W.3d 844, 850 (Mo. App. E.D. 2023) (citation modified).

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Uccello's claim is essentially that she has an interest in the proposed amendment itself, not in the fairness and sufficiency of the Secretary's title summary, which is the issue in this case. Indeed, she did not argue in her motion to intervene that she wanted to "challenge" the Secretary's ballot title. Moreover, although Uccello claims that her daughter's scholarship could potentially be in jeopardy if the proposed amendment is passed, as the trial court noted, this argument is speculative. This makes Uccello's interest different than that of the legislators who sought to intervene in Johnson. The issue in that case was not the propriety of a ballot title, but rather the constitutionality of the proposed legislation itself, to which the intervenors had a direct economic interest, and in that case, the legislators were not making the same arguments as the defendant. See Johnson, 366 S.W.3d at 21. When Uccello sought to intervene, she expressed the same interest or defense—defending the Secretary's Summary Statement, as the Secretary. Uccello's brief claims that, since section 116.190 was amended to allow the Secretary multiple attempts to draft acceptable language, more leeway to intervene early should be given as, like Uccello herself, a proposed intervenor might take issue with a later version of the Secretary's proposed title summary. This argument is unpersuasive, particularly since the Supreme Court struck down the statutory provisions allowing the Secretary multiple attempts to redraft the language. 4 Further, Uccello argued for the Secretary's original Summary Statement and for his First Revised Summary Statement,

4 See supra, n.3.

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and although she opposed his Second Revised Summary Statement, she merely argued in favor of the previous versions, which the trial court had already found insufficient and unfair. Since Uccello's grounds for intervention were to advocate for the same language that was proposed by the Secretary initially, and which the Secretary was defending on the same grounds, she has not established that she has any defense beyond the Secretary, as party defendant. 5 Moreover, a citizen's statutory right to challenge an official ballot title is limited to bringing an action to do so "within ten days after the official ballot title is certified by the secretary of state." Section 116.190.1 (emphasis added). The revised summary statements a court can direct the Secretary to submit pursuant to section 116.190.4 are not certified by the Secretary. Instead, if approved by the court as sufficient and fair, a revised summary statement is certified by the court and ordered to appear on the ballot. The effect of the (since invalidated) 2025 amendments to section 116.190.4 was no different from the procedures it replaced, which required a court either to find the Secretary's certified summary statement to be sufficient and fair or to certify the court's rewritten summary statement.

5 We note that this opinion does not affect the analysis for intervention when the intervenor opposes the Secretary's proposed ballot summary, and another citizen has filed suit to challenge the proposed summary; the rule cannot be that if a petitioner friendly to the Secretary's summary files a specious challenge, a citizen with legitimate complaints as to the fairness and sufficiency of the proposed ballot summary cannot intervene to raise those legitimate challenges. This comports with the court's duty to retain "a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course" or who might put a thumb on the scale to promote an initiative it favors. Sedey v. Ashcroft, 594 S.W.3d 256, 263 (Mo. App. W.D. 2020) (citation modified).

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Intervention as a matter of right Toder's second point on appeal is that Uccello also lacked a basis to intervene as a matter of right under Rule 52.12(a). "Opening intervention of right to citizens solely because they have a differing political view as to the ballot initiative would open the floodgates to oppressive intervention, and no public policy would be served." Prentzler v. Carnahan, 366 S.W.3d 557, 564 (Mo. App. W.D. 2012). The trial court did not grant Uccello intervention as a matter of right. Indeed, because it found that Uccello's allegation that her daughter would lose her scholarship if the proposed initiative were to pass was speculative, we conclude that the trial court could not have found that Uccello would "either gain or lose by direct operation of the judgment" in the ballot summary challenge but rather that her interest included "a mere, consequential, remote or conjectural possibility of being affected as a result of the action," defeating intervention as a matter of right. Id. At 562. In any event, Uccello does not argue on appeal that she should have been allowed to intervene as a matter of right. Uccello's appeal Because we find that the trial court erred in granting Uccello's motion to intervene in the underlying action and the Secretary did not appeal from the trial court's judgment, there is no challenge to the trial court's judgment that remains pending before this court. Therefore, we reverse the trial court's judgment to the extent it allowed Uccello to intervene in the action and dismiss Uccello's appeal. We otherwise affirm the judgment

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of the trial court and certify the Secretary's Second Revised Summary Statement for inclusion in the official ballot title for initiative petition 2026-070.

__________________________________ Gary D. Witt, Presiding Judge

All concur