UPDATE: Missouri high court hears arguments on incentive fund

Wednesday, September 19, 2012 | 6:13 p.m. CDT

JEFFERSON CITY — A Missouri incentive fund that could direct millions of dollars to new high-tech businesses could stand or fall based on how the state Supreme Court interprets two potentially contradictory provisions in the legislation that created it.

The state's high court heard arguments Wednesday on whether to overturn a circuit judge's ruling that the law was unconstitutional because of a contingency clause that made it effective only if lawmakers also had passed a separate economic development bill during a 2011 special session.

The attorney general's office urged the state Supreme Court to instead pay attention to a severability clause in the bill, which stated that other parts of the legislation could still take effect if particular sections were struck down. In short, the state contends the contingency clause was properly declared unconstitutional but that should not doom the entire bill or prevent the fund from being implemented.

The Missouri Science and Innovation Reinvestment Act, or MOSIRA, was passed by lawmakers and signed into law last year by Gov. Jay Nixon. It would authorize a portion of the tax revenues of existing biotechnology companies to be used to finance grants for similar startup businesses.

Lawmakers did not pass the separate economic development bill referenced in the contingency clause. But Nixon directed his administration to implement the new incentive fund anyway. That prompted a lawsuit by the Missouri Roundtable for Life and other anti-abortion activists who fear the fund could be used to finance human embryonic stem cell research.

Earlier this year, Cole County Circuit Judge Dan Green ruled that the contingency clause was unconstitutional because it infringed on the governor's authority to sign and veto bills — essentially giving the final say-so to lawmakers, who could nullify the governor's signature by not passing the separate, contingent legislation. The judge said the legislation also violated a state constitutional requirement that bills contain only one subject.

Attorney Stephen Clark of St. Louis, who represents the anti-abortion plaintiffs, told state Supreme Court judges Wednesday that they should strike down the entire law — either by upholding and carrying out the contingency clause, or by striking down the contingency clause and declaring that the rest of the bill must then also fall. He said the contingency clause — even if invalid — reveals the legislators' intent that the program should not take effect unless the contingency was met.

State Solicitor General James Layton said judges should look more at the structure of the bill than legislators' intentions. He said the incentive fund should be upheld because the allegedly invalid section — the contingency clause — did not substantively effect whether the program could work.


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