Jim Boeving v. Missouri Secretary of State Jason Kander Missouri State Auditor Nicole Galloway, Raise Your Hand For Kids and Erin Brower
493 S.W.3d 865
| Mo. Ct. App. | 2016Background
- Initiative petition would amend the Missouri Constitution to (1) add a retail cigarette tax phased in through 2020 (totaling $0.60 per 20-pack when fully implemented), (2) create an equity assessment fee initially $0.67 per 20-pack payable by wholesalers that is adjusted annually by the greater of 3% or CPI, and (3) deposit revenues into a new Early Childhood Health and Education Trust Fund with specified grant allocations and limits (including a "hold harmless" provision for certain revenue losses).
- Secretary of State certified a 100‑word summary statement and the State Auditor prepared a fiscal note summary; the summary statement listed (inter alia) a $0.67-per-pack fee (no mention of annual increases) and the fiscal note summarized potential state revenue increases ($263M–$374M) and stated local fiscal impact as "unknown."
- Jim Boeving sued under §116.190 challenging both the summary statement and the fiscal note summary as insufficient and unfair; the circuit court upheld the summary statement but vacated/remanded the fiscal note summary.
- Auditor Nicole Galloway and proponents (Raise Your Hand for Kids and Erin Brower) appealed the fiscal‑note ruling; Boeving cross‑appealed the summary statement ruling.
- The Court of Appeals reversed the circuit court: it held the fiscal note summary fair and sufficient but found the Secretary’s summary statement insufficient because it failed to disclose that the $0.67 fee is required to increase annually; the court certified modified summary language adding “which fee shall increase annually.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the summary statement adequately disclosed the equity assessment fee's mandatory annual inflation adjustments | Boeving: summary is misleading because it states a fixed $0.67 fee and omits the perpetual CPI/3% escalator | Secretary/Raise Your Hand: not required to include escalator detail; Brown allows omission of some numeric/details | Held: summary insufficient; must state fee will increase annually (court certified addition) |
| Whether the summary statement adequately described how revenues will be used (and related constitutional exceptions) | Boeving: summary fails to inform voters of specific fund uses and that it exempts distributions from Art. IX §8 and bars certain stem‑cell funding | Secretary/Raise Your Hand: fund name and adjacent fiscal note reasonably inform voters; cannot include all details in 100 words | Held: summary’s third bullet fair and sufficient; details not central and fiscal note supplements it |
| Whether the fiscal note summary was unfair for including DOR’s $374M estimate that assumed zero price elasticity | Boeving: Auditor should have rejected DOR estimate as unreasonable because it ignored reduced consumption from higher taxes | Auditor/Raise Your Hand: Auditor may rely on submissions, weighing reasonableness but not second‑guessing expert assumptions; Brown permits inclusion | Held: fiscal note summary fair and sufficient; Auditor acted within role in including DOR estimate as upper bound |
| Whether labeling local fiscal impact as "unknown" was unfair given OA’s $0–$10.4M estimate | Boeving: OA gave a $10.4M local revenue loss; ‘‘unknown’’ is misleading when quantifiable estimates exist | Auditor: OA assumed hold‑harmless may apply; other submissions showed no clear impact; ‘‘unknown’’ appropriately reflects uncertainty | Held: "unknown" is fair and sufficient given conflicting submissions and hold‑harmless mechanism |
Key Cases Cited
- Brown v. Carnahan, 370 S.W.3d 637 (Mo. banc 2012) (standards for sufficiency/fairness of Secretary of State summary and Auditor fiscal note)
- Dotson v. Kander, 464 S.W.3d 190 (Mo. banc 2015) (clarifies when summary need not reference features that do not change existing law)
- Seay v. Jones, 439 S.W.3d 881 (Mo. App. W.D. 2014) (court may modify and certify corrected summary language under §116.190)
- Sinquefield v. Jones, 435 S.W.3d 674 (Mo. App. W.D. 2014) (fiscal note may use ‘‘unknown’’ where submissions conflict; Auditor’s role limited)
- Archey v. Carnahan, 373 S.W.3d 528 (Mo. App. W.D. 2012) (summary need not resolve every peripheral question; central purpose is the test)