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story.lead_photo.caption Julie Smith/News Tribune Ron Calzone presents his argument to Osage County Judge Robert Schollmeyer during a hearing Tuesday in the case of Ronald Calzone V Missouri Secretary of State J Ashcroft.

Proposed judgments are due by the end of Thursday, and then Special Judge Rob Schollmeyer will decide how to rule on the challenge to the planned November statewide vote on raising the state's fuels tax by a dime over a four-year period.

Schollmeyer is Osage County's associate circuit judge but is hearing the gas tax case for the Cole County Circuit Court.

Lawmakers this year passed a bill that sends a proposed 10 cents per gallon increase in the fuels tax, phased-in over a four-year period, to the voters.

However, Ron Calzone, of Dixon, and state Rep. Mike Moon, R-Ash Grove, sued Secretary of State Jay Ashcroft and several others, asking the Cole County Circuit Court to prevent Ashcroft from putting the issue on the statewide ballot.

They argue that lawmakers violated the Constitution in the way they passed the bill.

Calzone, who isn't a lawyer but has represented himself and others in previous court cases, told Schollmeyer near the beginning of Tuesday's hour-long hearing that he and Moon are seeking to ensure "the state is spending taxpayer dollars legally. Our interest is (to) hold the Legislature's feet to the fire and make sure they are following the law, or the Constitution in this case."

The lawsuit said the bill began as a measure giving tax credits to people who have won Olympic medals, and ended up with those credits plus the statewide referendum on a tax increase — and that those changes violated the Constitution's requirements that bills have a single subject and stay within the bounds of the original title.

Calzone told Schollmeyer the issue is "ripe" for discussion now because state law requires the secretary of state to spend money advertising the proposal before the Nov. 6 election, with a predicted cost of approximately $400,000.

"It's an expense they wouldn't have to spend if it's not going on the ballot," he told the judge.

However, Assistant Attorney General Jason Lewis countered, the case should be dismissed for now, because it's not ready for the court to hear until after the voters have had a chance to decide the tax proposal.

And Jefferson City lawyer Chuck Hatfield — representing the group "SaferMO," which supports the fuels tax increase — said Calzone and Moon don't have the legal standing to file the lawsuit at this point because "they have to show a direct expenditure" and "there has to be evidence of an expenditure" before they can legally complain about it.

Hatfield noted previous court rulings have said things like Ashcroft's advertising costs "are just general operating expenses" that already are in the budget and shouldn't be challenged in the way Calzone and Moon have done.

Hatfield said Calzone and Moon can still sue after November, if voters approve the tax increase proposal.

However, Calzone argued, "The statute says you've got to publish (the advertising) so, unless the media is going to publish it for free — which isn't likely — there is going to be a cost (and) taxpayer dollars are going to be spent."

Hatfield told reporters after the hearing that Calzone's argument doesn't apply.

"When the General Assembly says, 'We want the people to vote on this,' that's a special part of our Constitution," he said. "The Legislature has the right to send things to the people, however they want to do that."

Hatfield added, "We've never had this issue (before) — there's not a single case out there that addresses whether, in sending something to the people, (lawmakers) have to follow the 'single-subject' and 'original purpose'" constitutional requirements.

He thinks Calzone and Moon face an uphill battle, because Missouri courts generally favor letting the public vote on issues.

However, Calzone said, voters shouldn't be asked to vote on something that wasn't passed properly.

"The people also have a right to make a decision on a single-subject question," which is the requirement for other ways that issues get put on the ballot, he said. "That's not what this does."

Scott Charton, a spokesman for SaferMO, said he's confident Schollmeyer will let voters decide the real issue, which is "the Missouri Department of Transportation has not had a funding increase on the motor fuels tax since 1996. In that 22-year period, the spending power on that 17 cents has gone to 7 cents — this has set Missouri back."

Schollmeyer removed MoDOT Director Patrick McKenna, Highway Patrol Superintendent Sandra Karsten and Revenue Director Joel Walters as defendants in the case, after Lewis noted: "They had no role in passing the bill in question, but if (it's) passed (by voters), each of those defendants will have some measure of responsibility in enforcing the law."

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