Tobacco tax petition still up in air

A state appeals court has changed some of the ballot title language on a proposed state constitutional amendment - and representatives of both sides said Monday they plan to appeal.
The proposed amendment would raise tobacco taxes to benefit pre-school education and children's health, but the issue hasn't been placed on the Nov. 8 ballot because signatures on the "Raise Your Hand 4 Kids" initiative petition still are being verified.
James Harris said "Raise Your Hand" disagrees with the court's ruling and plans to appeal in a bid for the initiative to appear on the November ballot.
Stephanie Fleming said Secretary of State Jason Kander and his staff already have started the appeals process.
The language change came as part of a 31-page ruling which reversed a May 19 decision by Cole County Circuit Judge Dan Green that the proposal's fiscal note violated state law, but that the ballot summary was acceptable.
The original Jan. 15 lawsuit - filed on behalf of Jim Boeving, Springfield, who owns the business Discount Smokes & Beer - said both the secretary's ballot summary and the auditor's fiscal note were "insufficient and unfair" under the state law standards set for initiative petitions, and that some parts of the proposal violate Missouri's Constitution.
"We conclude that, while the fiscal note summary is fair and sufficient, the summary statement is not," Presiding Judge Alok Ahuja wrote for the panel, which also included Judges Thomas Newton and Gary Witt.
The secretary's ballot language, which appeared on the petitions as required by law, said, "Shall the Missouri Constitution be amended to:
Increase taxes on cigarettes each year through 2020, at which point this additional tax will total 60 cents per pack of 20;
Create a fee paid by cigarette wholesalers of 67 cents per pack of 20 on certain cigarettes; and
Deposit funds generated by these taxes and fees into a newly established Early Childhood Health and Education Trust Fund?"
The court agreed with Boeving's argument the second point was inaccurate, because the 67-cent wholesalers' tax is just a starting point, and the proposed amendment requires it to increase each year by "at least 3 percent, or more if the annual change to the Consumer Price Index is higher."
So, the judges added the phrase, "which fee shall increase annually," to the second bullet point.
But the appeals court rejected Boeving's argument the ballot title also should notify voters that the proposal allows money raised by the tax increases to go to parochial schools - changing the existing constitutional language that prohibits public support of parochial education - and it prohibits the tax money raised from being used for stem cell research, which voters approved a decade ago.
The appeals court cited the state Supreme Court's ruling in a 2012 challenge that the summary statement "must be concise and cannot be intentionally argumentative or likely to create prejudice." Since state law limits the number of words in a ballot summary, the high court also has ruled the ballot language does not have to point to every issue raised by a petition.
In the Raise Your Hand case, the appeals court noted: "The central features of the initiative petition are the imposition of a new retail sales tax on cigarettes; the creation of a new equity assessment fee to be paid by cigarette wholesalers; and the creation of the Early Childhood Health and Education Trust Fund, and the use of monies from the Fund for early childhood health and education programs.
"As long as voters are accurately and fairly advised of these key components of the initiative petition, the summary statement is fair and sufficient."
Brad Ketcher, deputy treasurer for the group We Deserve Better Inc., which opposes the petition, said: "Proponents of this flawed measure should have abandoned their court fight and accepted the ballot summary changes from the beginning. Instead, they knowingly circulated their flawed petition and misled voters.
"Having violated the law, Big Tobacco" - which is helping fund the Raise Your Hand campaign - "should now forfeit any place on Missouri's ballot."