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IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI T. DAVID ROGERS, Plaintiff, vs.

MISSOURI SECRETARY OF STATE ROBIN CARNAHAN, Serve: Capitol Building, Room 208 Jefferson City, MO 65101, and MISSOURI STATE AUDITOR THOMAS A. SCHWEICH, Serve: Capitol Building, Room 121 Jefferson City, MO 65101, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.____________________

PETITION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Plaintiff T. David Rogers, by and through his attorneys, hereby states and alleges for his petition for declaratory judgment and injunctive relief: PARTIES 1. Plaintiff Rogers is a citizen and taxpayer of the state of Missouri and resident of

Jackson County, Missouri. 2. Defendant Robin Carnahan is the duly elected and acting Secretary of State of the

state of Missouri and is named as a Defendant in her official capacity ("Defendant Carnahan") pursuant to 116.190.2, RSMo. 3. Defendant Thomas A. Schweich is the duly elected and acting Auditor of the state

of Missouri and is named as a Defendant in his official capacity ("Defendant Schweich") pursuant to 116.190.2, RSMo.

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JURISDICTION AND VENUE 4. Plaintiff brings this action pursuant to the Revised Statutes of Missouri Chapter

116, Chapter 527, Chapter 536, and Missouri Rule of Civil Procedure 87. 5. Venue is proper in this Court pursuant to Section 116.190.1, RSMo. ALLEGATIONS COMMON TO ALL COUNTS 6. On or about August 12, 2011, Marc Ellinger submitted to Defendant Carnahan

sample sheets for two different versions of a constitutional initiative petition proposing to amend Article X of the Missouri Constitution, identified as version 10 and version 11 by Mr. Ellinger. ("Initiative Petition Sample Sheets" or "Version 10" and "Version 11"). A true and correct copy of the sample sheets, including the text of the proposals are attached hereto as Exhibits A-10 and A-11 and incorporated by reference. 7. On or about August 15, 2011, Defendant Carnahan transmitted copies of the

Initiative Petition Sample Sheets to Defendant Schweich for the purpose of preparing fiscal notes and fiscal note summaries under Section 116.175, RSMo. 8. On or about September 13, 2011, Defendant Schweich transmitted Fiscal Note

11-58 (corresponds to version 10) and Fiscal Note 11-59 (corresponds to version 11) with fiscal note summaries in each note (Fiscal Notes and Fiscal Note Summaries respectively) to Defendant Carnahan. True and correct copies of the Fiscal Notes and Fiscal Note Summaries are attached hereto as Exhibit B-10 and B-11 and incorporated by reference. 9. On or about September 14, 2011, Defendant Carnahan certified the Official Ballot

Titles for Versions 10 and 11, identified as 2012-070 and 2012-071, respectively, comprised of the Summary Statements and the Fiscal Note Summaries. True and correct copies of the Certifications of Official Ballot Title 2012-070 and 2012-071 are attached hereto as Exhibits C-

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10 and C-11 and incorporated by reference. 10. Plaintiff is challenging the Summary Statements, Fiscal Notes, and Fiscal Note

Summaries for Version 10 and Version 11 Initiative Petition Sample Sheets as further herein described. COUNT I THE SUMMARY STATEMENTS ARE INSUFFICIENT AND UNFAIR Plaintiff, for Count I of his cause of action against Defendant Carnahan, states as follows: 11. herein. 12. The Summary Statement for Version 10 (11-58, 2012-070) states: Plaintiff incorporates paragraphs 1 through 10 of this Petition as if fully set forth

Shall the Missouri Constitution be amended to: eliminate taxes paid by individuals based on income or earnings and sales and use taxes, including taxes paid by corporations and individuals, with certain exceptions; require the legislature to impose an expanded state sales tax on all sales and services, and allow the legislature to increase taxes up to 5% on purchases of food and 7% on other sales and services, with certain exceptions; require that state and local cumulative sales tax rate not exceed 10%, with certain exceptions; and Ex. C-10. 13. The Summary Statement for Version 11 (11-59, 2012-071) states: provide for a real property tax credit for eligible homeowners?

Shall the Missouri Constitution be amended to:

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eliminate taxes paid by individuals based on income or earnings and sales and use taxes, including taxes paid by corporations and individuals, with certain exceptions;

require the legislature to impose an expanded state sales tax on all sales and services, and allow the legislature to increase taxes up to 5% on purchases of food and 7% on other sales and services, with certain exceptions; and

require that state and local cumulative sales tax rate not exceed 10%, with certain exceptions?

Ex. C-11. 14. The only difference between the Summary Statement for Version 10 and the

Summary Statement for Version 11 is that Version 10 has a fourth bullet item " provide for a real property tax credit for eligible homeowners" (and the "and" is moved to reflect the number of bulleted items. Cf. Ex. C-10 and Ex. C-11. 15. The only difference in the text of the proposed measure in Version 10 and the text

of the proposed measure in Version 11 is that Version 10 purports to repeal existing Art. X, 6(a) and enact a new Article X, 6(a)(1) and (2). Cf. Ex. A-10 and Ex. A-11. Also, the prefatory language to the proposed constitutional text reflects this difference. Id. Otherwise, the proposed measures are identical. Id. 16. Section 116.334.1, RSMo, requires a summary statement to "be a concise

statement not exceeding one hundred words" and "be in the form of a question using language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure."

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17.

Both the Summary Statement for Version 10 (11-58, 2012-070) and the Summary

Statement for Version 11 (11-59, 2012-071) are insufficient and unfair and are likely to deceive and mislead voters in numerous ways, including, but not limited to, the following: (a) It is not clear what "including taxes paid by corporations and individuals"

in the first bullet applies to whether it only modifies the phrase "sales and use taxes" or whether it purports to eliminate some other kind of taxes paid by corporations and individuals. (b) The language of the first bullet suggests that the all sales and use taxes

will be eliminated (state and local) but the text of the proposed amendment does not repeal existing laws authorizing local sales tax. (c) It is confusing what the phrase "with certain exceptions" at the end of the

first bullet applies to whether the exceptions are to who pays taxes or to the types of taxes eliminated. (d) On the whole, it will be misleading and confusing to state that the

proposed provision eliminates sales and use taxes (1st bullet) but requires the legislature to impose a state sales tax (2nd bullet). (e) The Summary Statements state that the provisions eliminate taxes paid by

individuals based on income or earnings, but it is not clear whether this is personal tax paid by individuals or could be business taxes paid by individuals by virtue of a "flowthrough" tax treatment business entity, such as a sole proprietorship, a partnership, a limited liability company treated as a partnership for tax purposes or an S-corporation.

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(f)

The Summary Statements state that "all sales and services" will be taxed,

but that is simply not the case, given the multitude and breadth of exemptions mandated by the proposal. (g) The word "expanded" in the second bullet is misleading as it: (i) Is not clear what is being "expanded" about the state sales tax,

especially given that it is also being eliminated; (ii) Is not clear whether "expanded" refers to the sales tax percentage

(amount) or what is taxable (scope); (iii) In the event it is meant to be an expansion of the sales and services

that are taxed (scope), and given the multitude and breadth of the mandatory exceptions to taxation set forth in the proposals, "expanded" is a misleading term; (iv) In the event it is meant to be an expansion of the sales and services

(scope) that are taxed, given that the proposal allows the general assembly to adopt unlimited additional exemptions to taxation, "expanded" is a misleading term. (h) Taken as a whole, the Summary Statements convey that all sales and use

taxes are eliminated (state and local), but state nothing about the imposition of any local sales or use taxes, but then claim that state and local cumulative sales tax rate cannot exceed 10% it is insufficient and/or misleading in advising a signer or voter as to whether local sales tax is allowed. (i) The Summary Statements state that sales and use taxes are eliminated, but

only states that sales taxes are to be imposed it is unclear whether use taxes are forever eliminated and prohibited.

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(j)

With regard to the phrase "with certain exceptions" at the end of the

second bullet, it is unclear whether these "certain exceptions" apply to the 5% and 7% limits on tax rates (amount) or apply to the "state sales tax on all sales and services" (scope), or both. (k) It is misleading to state in the second bullet that the legislature is required

to impose an expanded state sales when they are given discretion to impose no tax at all due to the wording that the taxes are capped, not established, at 5% on food and 7% on "other sales and services." (l) The use of the word "increase" in the second bullet will mislead voters in

that it is not at all evident what the percentages are an increase to. (m) The summaries completely fail to put voters on notice that the sales tax

rates previously approved by voters in Article IV Sections 43(a) and 47(a) of the Missouri Constitution will be recalculated. (n) The summaries completely fail to put voters on notice that the sales tax

rates previously approved by voters in Article IV Sections 43(a) and 47(a) of the Missouri Constitution will be included in the rate limits in these provisions, even though previously and separately approved by voters. (o) The summaries completely fail to put voters on notice that local sales tax

rates often approved by local voters, will be recalculated despite the fact that they were voter approved and adopted prior to this proposal. (p) The summaries completely fail to put voters on notice that if they want to

adopt a local sales tax that will raise the cumulative sales tax rate above 10%, it requires

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not simply a majority approval vote as set forth in many applicable statutes, but would require a 4/7 or 2/3 approval vote depending on which type of election day it is voted on. (q) The summaries fail to inform voters that this provision will eliminate the

ability of voters to approve new sales/use or income/earnings taxes beyond those set forth in this proposal except by constitutional amendment. 18. In addition, the Summary Statement for Version 10 (11-58, 2012-070) is

insufficient and unfair and is likely to deceive and mislead voters in numerous ways, including, but not limited to, the following: (a) The fourth bullet is misleading as "provide for" suggests that such a

property tax credit will be new, when it in fact currently exists and the constitutional provision currently authorizing it is actually repealed by the proposal and different language enacted by the proposal. (b) The fourth bullet is misleading as "provide for" suggests that such a

property tax credit will be new but Section 1(c)(1) requires the legislature to provide for the continuation of the current property tax relief available for senior citizens and disabled individuals. (c) The fourth bullet fails to state that legislative action is needed to carry out

this replacement real property tax credit. (d) The fourth bullet states that the real property tax credit is for homeowners,

when in fact it is also to be available for eligible renters. (e) The fourth bullet does not inform voters that local taxing districts will bear

part of the costs of the new form of property tax relief.

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19.

In addition, the Summary Statement for Version 11 (11-59, 2012-071) is

insufficient and unfair and is likely to deceive and mislead voters in numerous ways, including, but not limited to, the following: (a) It fails to inform voters that the general assembly is supposed to enact a

law of some sort to continue the circuit breaker tax credit that was provided in the form of an income tax credit. Voters will assume that with income taxes being eliminated, any income tax credits will be eliminated. 20. Given that only the Official Ballot Titles will be affixed to each petition for

circulation to voters, it is reasonable to assume that a large majority of the voters to whom the Initiative Petitions will be presented for their signature will consider primarily the Summary Statements when making their decision whether to sign the Initiative Petitions. 21. Pursuant to Section 116.190, RSMo, Plaintiff requests this Court certify different

Summary Statements. WHEREFORE, Plaintiff prays this Court find the Summary Statements of the Official Ballot Titles are insufficient, unfair and will deceive and mislead voters, rewrite the Summary Statements of the Official Ballot Titles consistent with the suggestions above, and for such other relief as this Court deems appropriate. COUNT II THE FISCAL NOTES ARE INSUFFICIENT AND UNFAIR Plaintiff, for Count II of his cause of action against Defendant Schweich, states as follows: 22. herein. Plaintiff incorporates paragraphs 1 through 21 of this Petition as if fully set forth

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23.

Section 116.175.1, RSMo, states in part, upon receipt from the secretary of

states office of any petition sample sheetthe auditor shall assess the fiscal impact of the proposed measure. 24. Section 116.175.3, RSMo, states in part, The fiscal note and fiscal note summary

shall state the measures estimated cost or savings, if any, to state or local governmental entities. 25. In preparing the Fiscal Notes, Defendant Schweich sent correspondence to

various state agencies, local governments and political subdivisions (Fiscal Note Sources) requesting such Fiscal Note Sources provide him with their estimates of the fiscal impact of the Initiative Petitions. 26. information. 27. The Fiscal Notes are insufficient and unfair for at least the following reasons: (a) The Fiscal Note for Version 10 (11-58) includes increased costs in the Some Fiscal Note Sources provided Defendant Schweich with the requested

dollar amounts from the Department of Revenue that are from the Department's response to Version 11 (11-59), and not the numbers that are in DOR's response to Version 10 (1158). (b) In the Fiscal Notes for both Versions 10 and 11, the submissions from

several agencies and proponents and opponents include in their fiscal impact the presumption that the legislature will enact a new sales tax at the highest amount allowable (the "up to" amounts) as soon as it can be done. This assumption is unfair. (c) In the Fiscal Notes for both Versions 10 and 11, the submissions from

several agencies and proponents and opponents fail to provide the accurate costs of the

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measure to state government. For example, the only thing that this provision does is repeal existing taxes; this provision does not and cannot enact new taxes based upon how it is worded. The new taxes are not self-executing constitutional provisions but the fiscal notes specifically and unfairly assume that they are. Moreover, the notes contain insufficient calculations of costs even when with the inaccurate assumptions. (d) The Auditor does nothing in either of the Fiscal Notes to explain to the

reader how to analyze the disparate predictions of fiscal impact as between a $1.5 to 3 billion decrease in state revenues versus an over $300 million increase in state revenues. As such, the note is insufficient to inform the signers of the iniatitive. WHEREFORE, Plaintiff prays that this Court find the Fiscal Notes insufficient and unfair and set aside the Certifications of Official Ballot Title by Defendant Carnahan, remand the Fiscal Notes and Fiscal Note Summaries to Defendant Schweich for a proper calculation of fiscal impact as required in Section 116.175, RSMo, and for such other relief as this Court deems appropriate. COUNT III THE FISCAL NOTE SUMMARIES ARE INSUFFICIENT AND UNFAIR Plaintiff, for Count III of his cause of action against Defendant Schweich, states as follows: 28. herein. 29. The Fiscal Note Summaries for Version 10 (11-58, 2012-070) and for Version 11 Plaintiff incorporates paragraphs 1 through 27 of this Petition as if fully set forth

(11-59, 2012-071) are identical, both stating: Annual state government revenue under this proposal may increase by up to $300 million, or decrease by up to $1.5 billion. The proposal is

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estimated to increase state operating costs by at least $15 million, and may accelerate tax credit redemptions. The fiscal impact to local governments is unknown. 30. Section 116.175.3, RSMo, states: The fiscal note and fiscal note summary shall state the measures estimated cost or savings, if any, to state or local governmental entities. The fiscal note summary shall contain no more than fifty words, excluding articles, which shall summarize the fiscal note in language neither argumentative nor likely to create prejudice either for or against the proposed measure. 31. reasons: a. The Fiscal Note Summaries fail to state the measures estimated cost or savings; b. The Fiscal Note Summaries fail to discount inadequately prepared fiscal notes as outlined in Count II above; c. The Fiscal Note Summaries fail to accurately summarize the Fiscal Notes regarding fiscal impact to state government. d. The Fiscal Note Summaries fail to accurately summarize the Fiscal Notes regarding fiscal impact to local governments; and e. The Fiscal Note Summaries mislead voters into thinking that the amounts set forth as state revenue are the maximum negative and positive impacts by the use of the phrase "up to." The Fiscal Note Summaries are insufficient and unfair for at least the following

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WHEREFORE, Plaintiff prays that this Court find the Fiscal Note Summaries insufficient and unfair and set aside the Certifications of Official Ballot Title by Defendant Carnahan, remand the Fiscal Notes and Fiscal Note Summaries to Defendant Schweich for a proper calculation of fiscal impact as required in Section 116.175, RSMo, and for such other relief as this Court deems appropriate. COUNT IV DECLARATORY JUDGMENT THAT THE PROCESSES AND PROCEDURES USED TO EVALUATE FISCAL IMPACT SHOULD HAVE BEEN PROMULGATED AS RULES Plaintiff, for Count IV of his cause of action against Defendant Schweich, states as follows: 32. herein. 33. Section 116.175.1, RSMo, states in part, upon receipt from the secretary of Plaintiff incorporates paragraphs 1 through 31 of this Petition as if fully set forth

states office of any petition sample sheetthe auditor shall assess the fiscal impact of the proposed measure. 34. On information and belief, Defendant Schweich uses the same processes and

procedures every time he prepares a fiscal note pursuant to Section 116.175, RSMo. 35. 36. The Missouri State Auditor is a state agency. The only rule applicable to the fiscal note process under Section 116.175, RSMo,

that has been promulgated pursuant to the provisions of Chapter 536, RSMo, is 15 CSR 405.010, which only deals with submissions from non-governmental entities. 37. Defendant Schweich requests information from the same state agencies and local

political subdivisions every time he prepares a fiscal note pursuant to Section 116.175, RSMo.

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38.

The policies and procedures Defendant Schweich uses to assess the fiscal impact

of proposed ballot measures are statements of general applicability that should be promulgated as rules pursuant to Chapter 536, RSMo, but were not. 39. The processes and procedures Defendant Schweich uses to assess the fiscal

impact of proposed ballot measures is an agency statement of general applicability that implements, interprets, or prescribes law, specifically, Section 116.175, RSMo. 40. The processes and procedures Defendant Schweich uses to assess the fiscal

impact of proposed ballot measures affect unnamed and unspecified persons and facts. 41. Defendant Schweich, in assessing the fiscal impact of the Proposed Amendment

and in developing the Fiscal Notes and Fiscal Note Summaries, did not act pursuant to properly promulgated rules. WHEREFORE, Plaintiff prays this Court find the processes and procedures by which Defendant Schweich assesses the fiscal impact of proposed ballot measures is a rule, that Defendant Schweich has not promulgated such rule pursuant to the provisions of Chapter 536, and declare that the Fiscal Notes and Fiscal Note Summaries are void and invalid as not having been prepared under a properly promulgated rule; award Plaintiff his reasonable attorneys fees pursuant to Chapter 536, RSMo, and for such other relief as this Court deems appropriate. COUNT V - SECTION 116.175, RSMo, IS UNCONSTITUTIONAL Plaintiff, for Count V of his cause of action against Defendant Schweich and Defendant Carnahan, states as follows: 42. herein. Plaintiff incorporates paragraphs 1 through 41 of this Petition as if fully set forth

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43.

The Missouri Constitution prohibits any duty being imposed on the state auditor

that is not related to the supervising and auditing of the receipt and expenditure of public funds. Mo. Const. Art. IV, 13. 44. Section 116.175, RSMo, places a duty on the state auditor to assess the fiscal

impact of initiative petitions. 45. Section 116.175, RSMo, requires these assessments to be in the form of a fiscal

note and fiscal note summary. 46. Assessing the fiscal impact of initiative petitions is not related to the supervising

and auditing of the receipt and expenditure of public funds. 47. Because Section 116.175, RSMo, places a duty on the state auditor that is not

related to the supervising and auditing of the receipt and expenditure of public funds, it is unconstitutional. 48. Section 116.180, RSMo, requires the secretary of state to include the fiscal note

summary in the certified official ballot title that is printed on petition pages used to gather signatures. WHEREFORE, Plaintiff prays this Court find Section 116.175, RSMo, is unconstitutional, that the Fiscal Note and Fiscal Note Summary prepared by Defendant Schweich under Section 116.175, RSMo, are void, strike the Fiscal Note Summary from the Official Ballot Titles certified by Defendant Carnahan, and enjoin Defendant Carnahan from certifying official ballot titles for the Initiative Petitions containing any fiscal note summary, and for such other relief as this Court deems appropriate.

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Respectfully submitted, STINSON MORRISON HECKER LLP

By: Charles W. Hatfield, No. 40363 Khristine A. Heisinger, No. 42584 230 W. McCarty Street Jefferson City, Missouri 65101 (573) 636-6263 (573) 636-6231 (fax) chatfield@stinson.com kheisinger@stisnon.com Attorneys for Plaintiff Rogers

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