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Missouri court strikes down state auditor's power initiatives

Thursday, March 1, 2012 | 5:57 p.m. CST

JEFFERSON CITY — A Missouri judge has struck down the state auditor's authority to prepare financial estimates for ballot initiatives, calling into question the legality of numerous initiatives being circulated for petition signatures in the 2012 elections.

The ruling this week by Cole County Circuit Judge Jon Beetem is part of a challenge to a proposed tobacco tax initiative for which supporters are not gathering signatures. In that sense, it is a relatively moot decision. But attorneys who specialize in ballot initiatives said Thursday that the ruling ultimately could affect others.

State Auditor Tom Schweich said he would appeal the decision to the Missouri Supreme Court.

"Until the appeal is resolved, the legal status of pending ballot initiative fiscal notes is unclear," Schweich said.

At issue is a 1997 law that directs the auditor to assess the financial impact of proposed ballot initiatives. A summary of the auditor's conclusions is attached to the petition signature sheets and to the ballot as part of the initiative's official title.

Beetem said the state law violates the Missouri Constitution, which forbids laws imposing duties on the auditor that are not related to supervising and auditing the receipt and expenditure of public money. The judge said preparing estimates of future costs or savings does not relate to the auditor's core function of examining money already spent or received.

Beetem ordered the auditor's financial estimate stricken from the ballot title for an initiative that would impose a $1 per pack tax on certain smaller tobacco manufacturers, whose cigarettes often sell at the cheapest prices. Jefferson City attorney Marc Ellinger, who had filed the initiative, said his clients are no longer pursuing it. But he said the case will present an interesting situation to the state Supreme Court about the scope of the auditor's powers.

Ellinger also has filed other initiative petitions, including one to eliminate Missouri's individual income tax and replace it with a broader, higher sales tax.

Jefferson City attorney Chuck Hatfield, who brought the legal challenge to the tobacco tax initiative, said he has raised similar assertions in lawsuits that challenge the income tax proposal and other initiatives. Because the secretary of state's office can only count signatures from petitions bearing the official ballot title, Hatfield said that any signatures gathered on petitions with an auditor's financial estimate could be invalidated if Beetem's ruling is upheld and applied universally.

"People who are out there gathering right now need to take a step back and wait for the dust to settle on what the official ballot title should say," Hatfield said. "This ruling is going to have implications everywhere."

Beetem's ruling marks the second time a court has struck down Missouri's process for preparing financial estimates for ballot initiatives. In 1996, the state Supreme Court ruled that a law giving the responsibility to the Joint Committee on Legislative Research violated the state constitution by imposing a duty outside of its limited authority to advise the legislature.


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