RYH4K Counsel suggests that because of the “expedited briefing… it was not possible to devote sufficient attention” to the issues at hand… puts forth alternative official ballot title wording change
July 10, 2016 – Late yesterday lawyers for the Reynolds American funded Raise Your Hand 4-Kids ballot measure filed a motion for re-hearing before the Missouri Court of Appeals-Western District regarding a decision the court handed down Friday, July 8th that could invalidate petitions filed by the group to put a cigarette tax that starts as high as $1.27 per pack on the November 8th ballot.
Friday’s court decision included a re-write of the official ballot title summary statement as the court found that the summary proposed by the Missouri Secretary of State “fails to adequately inform voters of the initiative’s probable effects, and is therefore unfair and insufficient.” In filing for rehearing, RYH4K attorney’s cited that due to the “expedited basis” for briefing in the case “it was not possible to devote sufficient attention” to render a decision, a backhanded way of saying the court got it wrong.
The motion for rehearing centers on the way current Missouri law treats cigarette manufacturers that do not participate in the landmark tobacco master settlement agreement (MSA), and the inflation factor added to escrow payments these cigarette manufacturers are required to make each year. The RYH4K constitutional amendment imposes a special 67-cents a pack “equity fee” that increases annually when adjustments for inflation are applied. The rehearing motion asserts the appeals court erred in stating the inflation factor was a “mandatory, perpetual, annual increase” and that the parties can merely consent to a “simple agreement” voiding the MSA inflation adjustment included in the ballot measure.
RYH4K counsels choice of the word “simple” to describe the MSA amendment procedure belies the arduous undertaking such an amendment would require. Missouri’s Attorney General would have to initiate such an amendment and get the consent of all MSA settling states, US Territories, participating and subsequent participating cigarette manufactures that are signatories to the MSA to reverse the fee escalator.
Another assertion included in their rehearing motion puts forth their own proposed change in the official ballot title summary. RYH4K counsel takes exception to the appeals courts change that added, “which fee shall increase annually” to clearly describe the fact that the equity fee increases each year due to inflation. RYH4K motion for rehearing states a more accurate portrayal would be, “which fee may change annually”, or “fee may be adjusted annually”.
In putting forth these two alternative ballot summary statements, RYH4K counsel appears to be ignoring the provisions of current Missouri law regarding initiative petition official ballot summary statements. Section 116.120.1 of Missouri law directs the Secretary of State to handle petitions as follows: “Signatures on petition pages that do not have the official ballot title affixed to the page shall not be counted as valid”.
The petitions submitted earlier this year by RYH4K with over 330,000 signatures on them do not contain the official ballot title summary statement as re-written by the court Friday and as required by Section 116.120. Therefore, all of the petitions filed by RYH4K would not be valid under current law if the appeals court ruling is upheld.
There’s a reason Missouri law outlines the legal challenge process and puts a deadline of 180-days on the litigation, including all appeals. By waiting until November 20, 2015 to file their petition and then proceeding with signature collection while litigation was pending, RYH4K took a calculated risk that may cost their major benefactor, Reynolds American over $2.5Million.
Not that Reynolds American can’t afford it, they’ve been withholding millions in tobacco settlement payments from Missouri and the other settling state for nearly 10-years, forcing the states into arbitration… but that’s an issue for another day.
