Overfelt v. Mccaskill, WD 61385.

• Decision Date: 13 August 2002
• Docket Number: No. WD 61385.,WD 61385.
• Citation: 81 S.W.3d 732
• Parties: David OVERFELT, Appellant, D.C., Inc., Amiens Curiae, v. Claire McCASKILL, State Auditor, Matt Blunt, Secretary of State, Respondents, and William Danforth, William S. Berkley, and Citizens for A Healthy Missouri, Intervenor-Respondents.
• Court: Missouri Court of Appeals

81 S.W.3d 732

David OVERFELT, Appellant, D.C., Inc., Amiens Curiae, v. Claire McCASKILL, State Auditor, Matt Blunt, Secretary of State, Respondents, and William Danforth, William S. Berkley, and Citizens for A Healthy Missouri, Intervenor-Respondents.

No. WD 61385.

Missouri Court of Appeals, Western District.

August 13, 2002.

Marc H. Effinger, Jefferson City, for appellant.

Alana M. Barragan-Scott, Jefferson City, for respondents McCaskill and Blunt.

Alex Bartlett, Jefferson City, for respondent Danforth.

Katherine S. Walsh, Chesterfield, for Amicus Curiae D.C., Inc. David A. Linehan, Kansas City, for Amicus Curiae Washington Legal Foundation.

Before JOSEPH M. ELLIS, Chief Judge, PATRICIA BRECKENRIDGE, Judge and VICTOR C. HOWARD, Judge.

JOSEPH M. ELLIS, Chief Judge.

On March 1, 2002, the Missouri Secretary of State received eight proposed initiative petitions related to state taxes on tobacco products. One of those petitions, referred to by the parties and hereinafter by this court as the "Version 2 Initiative Petition," proposed an increase in the state cigarette excise tax of two and three-quarters cents per cigarette¹ and an increase in the state tax on other tobacco products from ten percent to thirty percent.

Pursuant to § 116.175,² the Secretary of State forwarded the Version 2 Initiative Petition to the Missouri State Auditor for preparation of a fiscal note and a fiscal note summary. In order to prepare the fiscal note, the State Auditor obtained information from the Missouri Department of Revenue. The Department of Revenue informed the State Auditor that approximately 593 million packs of cigarettes were being sold per year in the State, that most packs of cigarettes contain twenty cigarettes, and that the proposed increase in taxes would generate an additional $362,150,000 annually based upon the sale of that same number of packs of cigarettes. The Department of Revenue also took the amount reflected in manufacturers' invoices for other tobacco products and calculated that a twenty-percent increase in taxes on those same sales would generate an addition $17,504,000. The State Auditor did not contact or receive information from any other state agency or any local governments. After preparing the fiscal note, the State Auditor drafted a fiscal note summary that stated, "An additional tax of two and three-quarters cents per cigarette and an additional tax of twenty percent of the manufacturer's invoice price for tobacco products other than cigarettes would generate net annual state revenues of approximately $342,636,000; local fiscal impact, if any, is unknown."

On March 14, 2002, pursuant to § 116.175.2, the State Auditor submitted the fiscal note and fiscal note summary to the Missouri Attorney General who approved them as to their form. On March 27, 2002, as required by § 116.160.1, the Secretary of State submitted a proposed summary statement for the Version 2 Initiative Petition to the Attorney General. The Attorney General approved the legal content and form of the proposed summary statement. On March 29, 2002, the Secretary of State certified the official ballot title for the Version 2 Initiative Petition, as contemplated by § 116.180.

On April 8, 2002, Appellant David Overfelt filed a petition in the Circuit Court of Cole County challenging the fiscal note and the official ballot title, which is comprised of the summary statement and the fiscal note summary. Count I of the petition challenged the fiscal note, Count II challenged the summary statement, and Count III challenged the fiscal note summary. On April 24, 2002, the State Auditor and Secretary of State filed their answer to the petition. On April 25, 2002, William Danforth, William S. Berkley, and the Citizens for a Healthy Missouri filed a motion to intervene as proponents of the Version 2 Initiative Petition, and that motion was subsequently granted.

A hearing was held on April 30, 2002, at which time stipulated facts and exhibits were submitted to the court. On May 1, 2002, the trial court entered its Final Judgment and Order ruling in favor of the Defendants and against Mr. Overfelt on all three counts. Mr. Overfelt brings three points on appeal from that judgment.

The proper standard of review for this bench tried case based on stipulated facts is set forth in Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979). Because it was submitted on stipulated facts, "and contrary to counsel's assertion that our review is governed by Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc 1976), the only question before this court is whether the trial court drew the proper legal conclusions from the facts stipulated." Schroeder, 592 S.W.2d at 744 (quoting Drysdale v. Cornerstone Bank, 562 S.W.2d 182, 183 (Mo.App. S.D.1978)).

In his first point, Appellant contends that the trial court erred in failing to remand the fiscal note to the State Auditor to fulfill her duty under § 116.175 to analyze the fiscal impact of the initiative petition on local governments. In his second point, Appellant asserts that the trial court erred in failing to remand the fiscal note summary to the State Auditor because it reflects the alleged deficiencies contained in the fiscal note. Appellant argues that the trial court had the authority to remand these matters to the State Auditor under Chapter 116 and the common law.

Section 116.175 states, in relevant part: 1. Except as provided in section 116.155, upon receipt from the secretary of state's office of any petition sample sheet, joint resolution or bill, the auditor shall assess the fiscal impact of the proposed measure. The state auditor may consult with the state departments, local government entities, the general assembly and others with knowledge pertinent to the cost of the proposal. Proponents or opponents of any proposed measure may submit to the state auditor a proposed statement of fiscal impact estimating the cost of the proposal in a manner consistent with the standards of the governmental accounting standards board and section 23.140, RSMo, provided that all such proposals are received by the state auditor within ten days of his or her receipt of the proposed measure from the secretary of state.

2. Within twenty days of receipt of a petition sample sheet, joint resolution or bill from the secretary of state, the state auditor shall prepare a fiscal note and a fiscal note summary for the proposed measure and forward both to the attorney general.

3. The fiscal note and fiscal note summary shall state the measure's 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.

(emphasis added). Accordingly, § 116.175 charges the State Auditor with estimating the costs and/or savings associated with the proposed measure to state or local governmental entities in the fiscal note and the fiscal note summary.

The stipulation filed by the parties recited, as explained previously, that the State Auditor obtained information from the Missouri Department of Revenue regarding how many packs of cigarettes and other tobacco products were sold in the State and estimating revenues from additional taxation. The information submitted by the Department of Revenue did not include data relating to local governments. The State Auditor utilized this information to prepare the fiscal note and fiscal summary. The stipulation also includes the following factual statement: "The State Auditor did not contact or receive or review information from any state agency, other than than the Department of Revenue, or any local government in Missouri in the course of preparing the fiscal note." Finally, the fiscal note itself makes no mention of the impact on local governments other than the statement in the fiscal note summary that "local fiscal impact, if any, is unknown."

From these facts, and without more, Appellant argues that the State Auditor did not address the fiscal impact on local governments, as required by § 116.175, and, therefore, the trial court erred in failing to remand the fiscal note and fiscal note summary to the State Auditor. We reject Appellant's contention because the remedy he sought is not authorized by the statute and because he failed to carry his burden to present sufficient evidence to permit the trial court to grant the remedy provided for in the statute.

Appellant correctly points out that "[w]here a statute creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common law action which would afford him adequate and appropriate means of redress." Wear v. Walker, 800 S.W.2d 99, 103 (Mo.App. S.D.1990). However, this principle is not applicable where, as here, the statutory scheme expressly provides a remedy.

Appellant's challenge to the fiscal note was brought under § 116.190. "[Section] 116.190 provides a means for citizens wishing to challenge the language of the official ballot title or fiscal note to bring an action in circuit court." Bergman v. Mills, 988 S.W.2d 84, 90 n. 4 (Mo.App. W.D.1999). In relevant part, Section 116.190 states:

1. Any citizen who wishes to challenge the official ballot title or the fiscal note prepared for a ... statutory initiative or referendum measure, may bring an action in the circuit court of Cole County. The action must be brought within ten days after the official ballot title is certified by the secretary of state in accordance with the provisions of this chapter.

2. The secretary of state shall be named as a party defendant in any action challenging the official ballot title prepared by the secretary of state. When the action challenges the fiscal note or fiscal note summary prepared by the auditor, the state auditor shall also be named as a party defendant.

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