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'Raise Your Hand 4 Kids' tobacco tax at center of legal battle

by Bob Watson | August 21, 2016 at 6:55 a.m. | Updated August 21, 2016 at 9:17 a.m.

Cole County Circuit Judge Jon Beetem expects to decide within a few days whether Missouri voters will be asked this Nov. 8 to change the state Constitution so the state's taxes on tobacco can be increased and the additional money directed to early childhood and health education.

Secretary of State Jason Kander said earlier this month the measure had received enough valid signatures to be placed on the statewide general election ballot, and he labeled it as Amendment 3.

But opponents of the proposed amendment urged Beetem during hearing Friday to remove the proposal from the November ballot, arguing it didn't meet the legal standards for Kander to certify its ballot placement.

Kander's office initially approved its circulation in January, and supporters gathered signatures even as opponents challenged the ballot language required to be on each page where signatures are placed.

On May 19 - after the petitions had been turned in to Kander's office - Cole County Circuit Judge Dan Green ruled the secretary of state's ballot language was "fair and sufficient," but the state auditor's fiscal note wasn't and needed to be redone.

On July 8, a three-judge panel of the Missouri court of appeals' Western District in Kansas City reversed Green's ruling, saying the auditor's fiscal note was OK, but the secretary of state's language in the second bullet point wasn't good enough.

As modified by the appeals court and certified for the Nov. 8 general election ballot, the proposal's ballot language now says:

"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, which fee shall increase annually; and

"deposit funds generated by these taxes and fees into a newly established Early Childhood Health and Education Trust Fund?"

And the fiscal note, which also is part of the ballot language, reads:

"When cigarette tax increases are fully implemented, estimated additional revenue to state government is $263 million to $374 million annually, with limited estimated implementation costs. The revenue will fund only programs and services allowed by the proposal. The fiscal impact to local governmental entities is unknown."

The opponents want Beetem to remove the amendment from the ballot, arguing in a brief filed with the court Friday, Missouri law directs "the Secretary of State not to count signatures unless the initiative petition pages wherein those signatures are found contain the correct official ballot title."

Representing different clients, Jefferson City attorneys Chuck Hatfield and Heidi Doerhoff Vollet argued none of the signatures should be counted, because all the petitions circulated this spring contained the wrong ballot language.

Kansas City lawyer Edward Greim, representing the "Raise Your Hand 4 Kids" (RYH4K) group that sponsored and circulated the amendment proposal, argued the ballot language was considered correct when the petitions were circulated and submitted - because the appeals court didn't change the language until two months after the petitions had to be turned in.

St. Louis attorney Jane Dueker - a supporter of the amendment proposal - said in a Friday news release: "Opponents of the measure continue their desperate legal wrangling.

"Vendors and manufacturers of cheap cigarettes oppose Amendment 3 because it would create its funding source by raising Missouri's lowest-in-the-nation cigarette tax."

Ron Leone, an attorney and executive director of the Missouri Petroleum Marketers and Convenience Store Association, supports a different tobacco tax increase proposal that would change state law instead of the Constitution and direct the money toward transportation infrastructure needs instead of early childhood education.

That proposal also was certified to the Nov. 8 ballot as Proposition A.

Leone recently said the RYH4K proposal really was "Big Tobacco's outrageous and unfair 750 percent tax increase."

Opponents have complained the nation's largest tobacco companies are behind the RYH4K idea, because it includes an additional tax increase on the smaller - and, in many cases, newer - tobacco companies that weren't part of the 1990s Tobacco Master Settlement Agreement requiring the companies to pay states billions of dollars in money for costs the states paid in extra health care because the major tobacco companies hid the health dangers of their products.

But a RYH4K statement countered the argument "RJ Reynolds funds the campaign Who cares?! At the end of the day, this policy benefits thousands of Missouri children. That's what really matters.

"It also ends an $80 million subsidy for cheap cigarette manufacturers. But if that's not good enough for you, know that this campaign was self-funded by private citizens and foundations two years before RJ Reynolds came on board.

"RYH4K has more individual contributions than any other tobacco tax related effort in the history of the state."

During a legislative hearing last spring, Hatfield and some lawmakers said there is no subsidy, because the Master Settlement Agreement didn't require companies to pay if they weren't a part of the agreement.

At Friday's hearing, Hatfield also told Beetem the proposal violates several parts of the Missouri Constitution.

One of those is a provision providing money raised through the tax to religious organizations for their early childhood education programs.

Hatfield told Beetem that proposal violates the Constitution's existing prohibition against that kind of appropriation.

But the RYJH4K statement, issued Friday but not about the court hearing, said: "Newsflash! We've been doing this for years!

"Missouri Preschool Project, Head Start, Title I and Parents as Teachers ALREADY GO TO PUBLIC, PRIVATE and FAITH-BASED SCHOOLS!

"Public/private partnerships are the best model for delivering early childhood services."

Hatfield also argued the proposal changes more than one section of the Constitution, violating current constitutional language requiring a proposed amendment change only one section of the Constitution.


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