UPDATE: Missouri judge strikes down new science incentives fund

Tuesday, February 21, 2012 | 8:15 p.m. CST

JEFFERSON CITY — A recently created state fund designed to offer incentives to science or technology companies has been struck down by a central Missouri trial judge.

The Jefferson City News Tribune reported Tuesday that Cole County Circuit Judge Dan Green declared unconstitutional the legislation that created the fund. The science fund was one of just two measures to win approval this past fall during a largely unproductive special legislative session that collapsed because of divisions between the House and Senate over broad changes to Missouri's business incentives.

The Missouri Science and Innovation Reinvestment Act was intended to offer incentives to companies that conduct research or make products in a variety of high-tech fields, including agricultural biotechnology, homeland security, information technology and pharmaceuticals. It was to be financed through annual transfers of state revenues equal to a percentage of the growth in the wages paid to employees of existing science-based companies. That essentially means tax revenue from existing companies would be used as grants to help start similar businesses.

However, the measure contained a clause stating that it could not take effect until the legislature passed a separate measure dealing with state tax incentives for businesses. The separate bill did not pass during the special session, but Gov. Jay Nixon said his administration would take steps to implement the law anyway. Nixon's budget recommendations for next year include $4 million for the science fund.

Nixon also had requested $1 million for the science fund to be included in a mid-year spending bill. The House did not include the funding and gave the supplemental budget first-round approval Tuesday.

Green said in his ruling that the science fund legislation violated the governor's right to veto a bill and a state constitutional requirement that legislation only contain one subject. He said the Missouri Constitution does not allow for a bill passed by the legislature and signed by the governor to fail because another measure did not pass.

"The General Assembly thus attempted to retain for itself the ability to decide later whether the governor's signature accomplished what the constitution specified," Green wrote in his ruling. "The Missouri Constitution simply does not permit the legislature to interfere with gubernatorial authority in that fashion."

Although Missouri judges can reject part of a law and allow the rest to remain in place, Green said he was convinced the contingency clause was needed for the science fund legislation to pass. Green said the contingency clause was part of the bill's "very subject" and "may well have been a last-ditch attempt to garner enough votes" to pass the legislation.

Among those challenging the science incentives fund have been the Missouri Roundtable for Life and Missouri Right to Life. Pam Fichter, the president of Missouri Right to Life, said when the lawsuit was filed in December that creating the fund despite the contingency clause could create the possibility of public funds going to abortion, human cloning and experiments that destroy human embryos.

Fred Sauer, of Missouri Roundtable for Life, said the court ruling protects Missouri residents from an unconstitutional law, and that the organization was dedicated to making sure people understand the details of the science fund.

Contingency clauses have been included previously in Missouri legislation. In 1997, then-Gov. Mel Carnahan signed legislation dealing with procedures for administrative rules that had a multipart contingency clause.

However, the Missouri Supreme Court struck down the contingency clause in a 1993 education law that sought to place a tax referendum on the ballot only if the high court ruled a certain way in a separate lawsuit challenging the state's school funding formula.

The state Supreme Court concluded the contingency clause was an improper delegation of legislative power.

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