Sustainable constitutional growth? The "right to farm" and Missouri's review of constitutional amendments.

• Author: Kennedy, Angela
• Position: COMMENT

INTRODUCTION

The Missouri River Basin is comprised of more than 100 million acres of cropland across nine states, including Missouri.* 1 It produces nearly half of U.S. wheat, nearly a quarter of its grain com, and over a third of its cattle, and in 2008, the value of these crops and livestock exceeded $100 billion. (2) Missouri's share in this revenue, however, contributed to less than three percent of Missouri's gross domestic product ("GDP") in 2013:3 not what one would call the "foundation and stabilizing force of Missouri's economy," or even a "vital sector of Missouri's economy." (4) Yet these assertions are memorialized in the newly passed "right-to-farm" state constitutional amendment submitted to, and endorsed by, Missouri's popular vote in August 2014: (5)

That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri. (6) Historically, these assertions were certainly true of Missouri's economy. (7) Even now, when they are rote platitudes more than assertions of present fact, Missouri does have an interest in protecting agriculture, both as a historically important sector and as a livelihood that supports many individual Missouri citizens. Missouri remains an important agricultural state, even as agriculture is dwarfed by industry. (8) However, the placement of this amendment in Missouri's constitutional bill of rights, and its expansive constitutional language, warrants some concern as to its actual effect. This is not really a question of economics. Even if agriculture in Missouri produced twenty times the revenue it does now, the amendment still might privilege certain rights in Missouri at the expense of others--regardless of whether the majority of voting Missourians approved.

Indeed, while the amendment did receive a majority vote from Missouri citizens, it was perhaps the barest majority possible at 50.12%. (9) The controversial enactment of the right-to-farm amendment serves as a prime example through which to examine judicial review of state constitutional amendments both during and after the political process. The available legal challenges are divisible into two general categories: (1) challenges to the political constitutional amendment process and (2) substantive challenges to constitutional amendments themselves. This Comment will discuss these challenges as applied to the right-to-farm amendment. (10)

Part I discusses the historical background and enactment of the amendment. Next, Part II outlines the legal challenges available during the political constitutional amendment process, detailing what challenges were--or were not--made to the right-to-farm amendment during its enactment. Part III discusses how Missouri courts generally review legislatively-referred constitutional amendments and how they would likely review challenges brought under the right-to-farm amendment. Part IV discusses the adequacy of existing legal challenges to Missouri constitutional amendments--particularly on the front end--when these amendments are enacted via a single election. It also provides suggestions for the needed reform of this process. Even if the right-to-farm amendment just reaffirms rights already available to Missouri citizens, it was an expensive experiment on the state's bill of rights. Ultimately, however, it seems to do more than that by foreclosing future legislative regulation of agriculture and possibly overturning existing statutory measures. While this Comment is not an indictment of farmers' rights, it questions whether the existing constitutional amendment process, exemplified in the passage of the right-to-farm amendment, adequately corresponds to the foundational nature of the Missouri Constitution.

1. HISTORICAL BACKGROUND

   Conflicts between agriculture and urbanization in Missouri are nearly as old as the state itself. Following the Civil War, industrialization not only revolutionized urban centers, but it also changed the landscape of farming communities in Missouri. (11) New technologies like barbed wire, threshers, and baling machines dramatically decreased the labor and time required for producing crops. (12) This led to crop specialization and the formation of "bonanza farms," and many small farmers were pushed off of their lands, unable to compete. (13) But farmers soon began to face additional competition beyond their fellow farmers. Throughout the mid- to late-nineteenth century, a number of farmers brought nuisance actions against businesses and cities, as the latter's expansion damaged the farmers' crops. (14)

   Over the next century, agriculture, cities, and business in Missouri continued to grow side-by-side at various paces. By 2012, the value of farms in Missouri was at record highs--up twenty-two percent since 2007. (15) That being said, the future of Missouri farms was, and still is, somewhat uncertain, as farmland continues to be lost to expanding "residential, commercial and industrial land uses." (16) The number of farms in Missouri is decreasing, (17) and the amount of farmland in the state decreased by nearly one million acres between 2007 and 2012. (18) More worrisome still, as of 2012, seventy-one percent of Missouri farmers were over age fifty-five. (19) Only 12.6% of Missouri farmers were under age forty-four. (20)

   Technological advancements have improved agricultural productivity, further reducing farm labor in the state by nearly twenty-nine percent between 2002 and 2007. (21) Indeed, contemporary agriculture operations involve "factory" more than "family" farms. (22) More animals are concentrated in fewer operations, and confinement is now the primary method of animal production. (23) For example, the number of hogs in the state of Missouri stayed roughly the same between 1982 and 2007, while the number of Missouri's hog farms during that period dropped by nearly ninety percent. (24)

   These concentrated animal operations pose increased environmental and health risks. As the U.S. General Accounting Office reported, "Nationwide, about 130 times more animal waste is produced than human waste--roughly 5 tons for every U.S. citizen--and some operations with hundreds of thousands of animals produce as much waste as a town or a city." (25) This waste puts pollutants into the environment that are harmful to human health. (26) Similarly, the widespread application of pesticides, herbicides, and fertilizers to crops can also contribute to health problems, like birth defects, nerve damage, and cancer. (27) Thus, the inevitable industrialization of the farm has changed the agricultural landscape dramatically, yet states continue to take a "handsoff' approach to agriculture regulations. (28)

   In 2010, it appeared that this approach might be changing. Missouri passed new, restrictive legislation that Missouri Farm Bureau president Blake Hurst called a "sort of a wake-up call to agriculture." (29) Colloquially titled "Proposition B," this statute imposed new requirements on dog breeders for more humane conditions. (30) It subjected offending breeders to fines and penalized repeat offenders with criminal citations. (31) Proposition B had been sponsored largely by out-of-state animal rights groups and was interpreted by some within the agricultural community as "outsiders" telling farmers how to raise their animals. (32)

   On the heels of this major legislative blow to Missouri agricultural groups, a class of plaintiffs won an $11 million odor nuisance suit against a northwestern Missouri hog farm. (33) In response, agricultural lobbyists and proponents marshalled to the cause of protecting the rights of Missouri ranchers and farmers from outsiders several generations removed from the farm. (34) Various Missouri legislators proposed bills to protect farmers' rights to raise animals and perform other farming practices, and it was against this backdrop in January 2013 that Bill Reiboldt and Jason Smith in the Missouri House of Representatives introduced the bills that would become the right-to-farm amendment. (35) Their separate efforts were consolidated into a single bill, (36) which was revised (37) and reported to the Senate in March 2013. (38)

   The Missouri Senate, however, resisted language in the House's bill that barred initiative petitions (39) to regulate farming practices, and they offered their own substitute bill. (40) This was again amended (41) and voted on in its final form in May 2013. (42) More than eighty percent of House members supported the bill, and the Senate vote, also exceeding an eighty percent majority, carried the proposed constitutional amendment to the 2014 ballot. (43)

   Proponents and opponents of the amendment then went to work advocating for their respective positions. Both sides spent millions of dollars campaigning on the internet, on television, and through mail and phone calls. (44) Proponents of the amendment claimed not only that it would protect family farms from out-of-state animal rights groups, but they also campaigned for its enactment on the grounds that it would increase revenue and food supplies and create jobs. (45) Opponents of the amendment worried about the amendment's broad, vague language and claimed instead that it would benefit large, foreign-owned corporate farms at the expense of small family farms. (46)

   Governor Jay Nixon put the measure to a public vote on August 5, 2014 47 where it passed by a margin of less than one percent. (48) Wes Shoemyer, a former member of the Missouri Senate, (49) petitioned for a recount of the votes under Missouri Revised Statutes Section 115.601, which provides that any "person whose position on a question was defeated by less than...