IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT REX A. SINQUEFIELD and ) TRAVIS BROWN, ) ) Respondents, ) WD77056 ) vs. ) Opinion filed: March 11, 2014 ) TODD S. JONES and MISSOURI ) ROUNDTABLE FOR LIFE, ) ) Appellants. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI THE HONORABLE JON E. BEETEM, JUDGE
Before Special Division: James E. Welsh, Chief Judge, Victor C. Howard, Judge and Thomas H. Newton, Judge
This case involves a challenge to the fiscal note and fiscal note summary of a ballot title
for an initiative petition submitted by Todd Jones. The initiative seeks to impose campaign
contribution limits and make other campaign finance related changes to the Missouri
Constitution. Todd Jones appeals the judgment of the Cole County Circuit Court (“trial court”)
declaring the fiscal note and the fiscal note summary insufficient and unfair. The trial court
remanded the fiscal note and fiscal note summary to the state auditor for preparation of a new
fiscal note and a new fiscal note summary.
In his two points on appeal, Mr. Jones challenges the trial court‟s judgment declaring the
fiscal note and fiscal note summary insufficient and unfair. Mr. Jones asks this court to find that the language of the fiscal note and the fiscal note summary was fair and sufficient and to reverse
and remand the judgment with instructions to certify the fiscal note and fiscal note summary to
the secretary of state pursuant to section 116.190.4. The judgment is reversed.
Procedure for Initiative Petitions, Fiscal Note, and Fiscal Note Summary, and Challenges
Thereto
The procedure for initiative petitions consists of constitutional requirements as follows:
[T]he initiative petition must (1) be signed by 8% of the voters in each of two- thirds of the congressional districts in the state, (2) be filed with the Secretary of State no less than four months before an election, (3) contain a proper enacting clause, and (4) contain no more than one amended and revised constitutional article, or one new article which contains not more than one subject and matters properly connected therewith.
Brown v. Carnahan, 370 S.W.3d 637, 645 (Mo. banc 2012) (quoting Missourians to Protect the
Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990) (citing Mo. Const., art. III, sec.
50)).
In addition, the requirements of chapter 116, RSMo Cum. Supp. 2012,1 must be met in
order for an initiative petition to appear on the ballot. Id. Chapter 116 provides that the petition
must be approved by the attorney general and the secretary of state as to form. § 116.332.1. The
secretary of state also sends a copy to the state auditor, who is to assess the fiscal impact of the
proposed measure and prepare a fiscal note and fiscal note summary. Id. The secretary of state
later certifies the official ballot title, which includes the secretary of state‟s summary statement
and the auditor‟s fiscal note summary. Brown, 370 S.W.3d at 646. The ballot title is affixed to
each page of the petition as it is circulated for the collection of the signatures necessary to have it
placed on the ballot. Id.
1 All statutory references herein are to RSMo Cum. Supp. 2012, unless otherwise noted.
2 At issue in this case are the fiscal note and fiscal note summary for an initiative petition
that would limit campaign contributions (“Initiative”). The note and summary are prepared by
the state auditor, who first “sends copies of the proposed ballot initiative to various state and
local governmental entities requesting the entities review the same and provide information
regarding the estimated costs or savings, if any, for the proposed ballot initiative.” Id. at 649.
The auditor‟s choice of local governmental entities is based on geography, population, and form
of government, with a goal of reaching a good cross-section of local governments that might be
affected by the proposal. Id. Proponents, opponents, and members of the public may submit
fiscal impact information also, but the auditor has no duty to notify members of the public when
he receives an initiative petition from the secretary of state. Id.
The auditor then examines the submissions received and determines whether they
“appear complete, are relevant, have an identifiable source, and are reasonable.” Id. “[T]he
auditor examines the submission to establish whether it addresses or diverges from the particular
issue” in order to determine whether the submission is reasonable. The auditor's analysis in this
regard is based on his “experience in state government and overall knowledge and understanding
of business and economic issues.” Id. If a submission is unreasonable, the auditor “determines
what weight the submission will be given when preparing the fiscal note summary.” Id. If a
particular submission leaves any questions or appears incomplete, the auditor may conduct a
follow-up inquiry. Id. The auditor drafts the fiscal note and fiscal note summary based on the
various submissions received. Id. The fiscal note consists of the responses submitted, listed
verbatim with only minor editing. Id. In the fiscal note summary the auditor compiles the
various proposals with the purpose of advising the voters about the potential cost or savings, if
any, of adopting the initiative. Id. at 649-50.
3 Section 116.190 provides a means for citizens to challenge, in circuit court, the language
of an official ballot title or fiscal note. Overfelt v. McCaskill, 81 S.W.3d 732, 736 (Mo. App.
W.D. 2002) (quoting Bergman v. Mills, 988 S.W.2d 84, 90 n.4 (Mo. App. W.D. 1999)). The
party challenging the official ballot title has the burden of showing why the fiscal note or fiscal
note summary is insufficient or unfair. § 116.190.3; Cures Without Cloning v. Pund, 259 S.W.3d
76, 81 (Mo. App. W.D. 2008). If this requirement is met, the plaintiff is entitled to a “different
fiscal note or fiscal note summary.” § 116.190.3.
Factual Background and Procedural History
On May 3, 2013, Todd Jones submitted to the Secretary of State a sample sheet for a
proposed initiative petition regarding campaign contribution limitations. The Secretary of State
then prepared a summary statement of the initiative and the State Auditor prepared a fiscal note
and drafted a fiscal note summary, which were also approved by the Attorney General as to
content and form. Subsequently the Secretary of State certified the official ballot title, which
consisted of the summary statement and fiscal note summary.
On December 30, 2011, Rex Sinquefield filed a petition under section 116.190
challenging the official ballot title. He asserted, among other things, that the fiscal note and the
fiscal note summary were insufficient and unfair. Mr. Sinquefield asked the court to find the
fiscal note and the fiscal note summary insufficient and/or unfair and order the ballot title to be
stricken and the fiscal note and fiscal note summary be remanded to the auditor for preparation
of a new fiscal note and fiscal note summary.
On August 16, 2013, Todd Jones and Missouri Roundtable For Life (“Roundtable”)
moved to intervene in the case to defend the ballot title. The motion was granted and Mr. Jones
and Roundtable filed an answer. On October 15, 2013 Mr. Sinquefield filed a motion for partial
4 summary judgment and suggestions in support thereof with respect to the summary statement.
The Secretary of State filed a response and memorandum in opposition on October 22, 2013.
The Secretary of State, Mr. Sinquefield, and Mr. Jones and Roundtable filed pre-trial briefs on
October 18, 2013. On October 21, 2013, a joint stipulation of facts and exhibits was filed. On
October 23, 2013 the court heard evidence, including the testimony of Jon Halwes as
representative of the auditor, and arguments by the parties on all pending claims, and took the
case under advisement. On November 26, 2013, the court entered judgment ruling, among other
things, that the fiscal note and fiscal note summary are insufficient and unfair, and remanding the
fiscal note and fiscal note summary for preparation of a new fiscal note and fiscal note summary.
The new fiscal note was not to include the Department of Revenue‟s submission to the
auditor because the court concluded the submission to be unreasonable. The portion of the fiscal
note summary reading, “Any potential impact to revenues for state and local governmental
entities is unknown[,]” was to be changed to (1) forecast that the Initiative would have a negative
impact on state and local revenues and (2) include the specific projections of diminished state
and local revenues contained in a submission to the auditor from a self-identified opponent of the
Initiative. This appeal by Mr. Jones followed.
First, Mr. Jones contends that the court erred in remanding the fiscal note because it was
not insufficient and unfair in that the Department of Revenue‟s submission was reasonable and
properly declined to forecast the Initiative‟s impact on state and local revenues. In his second
point, Mr. Jones argues that the court erred in remanding the fiscal note summary because it was
not insufficient and unfair in that the auditor “properly exercised [his] discretion in discounting
the speculative analysis of” the Ellinger Submission and “properly summarized the Fiscal Note
by stating that the proposal‟s impact on state and local tax revenues was „unknown.‟”
5 Standard of Review
In the appeal of a court-tried civil case, the appellate court will affirm the judgment of the
trial court “unless there is no substantial evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law.” Missouri Mun. League v. Carnahan,
364 S.W.3d 548, 551 (Mo. App. W.D. 2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.
banc 1976)).
Analysis
I. The Department of Revenue’s Submission Was Not Unreasonable
Section 116.175 allows the state auditor to “consult with the state departments, local
government entities, the general assembly and others with knowledge pertinent to the cost of the
proposal[,]” and also allows “[p]roponents or opponents of any proposed measure [to] submit to
the state auditor a proposed statement of fiscal impact estimating the cost of the proposal.” The
auditor reviews the submissions for completeness, relevance, source identity, and
reasonableness. Brown v. Carnahan, 370 S.W.3d at 649. A submission is reasonable if it
addresses the particular issue rather than diverges from it, which the auditor determines based
upon his experience in state government and overall knowledge and understanding of business
and economic issues. Id. For purposes of clarification, if needed, the auditor may conduct a
follow-up inquiry with an entity whose submission raises additional questions or appears
incomplete. Id.
In this case, submissions were made by a number of entities, among which were Marc
Ellinger, an attorney and self-identified opponent of the Initiative (“Ellinger Submission”), and
the Department of Revenue.
6 The Ellinger Submission consisted of estimates of fiscal impact to state and local entities,
indicating a negative impact to the state based on lost state income tax, corporate income tax, and
state sales tax. It argued that campaign finance reform would result in a decrease in campaign
spending in Missouri, which would putatively cause a decrease in state and local tax revenues
from campaign spending. The Submission contended that capping campaign contributions
would result in less campaign spending, and less campaign spending would result in the
collection of less sales and income taxes by state and local governments. The Ellinger
Submission purported to extrapolate from figures from Governor Nixon‟s 2012 campaign to all
other statewide campaigns for all future years. It claimed to predict with precision the actual
fiscal impact on state and local tax revenues that would result from such anticipated decreases in
campaign spending. The Ellinger Submission conceded that “there has not been a
comprehensive study regarding the fiscal impact of state elections on Missouri state and local
governments,” and contained no such economic study.
Prior to receiving any response from the Department of Revenue, on May 17, 2013, Mr.
Halwes, representative of the state auditor in this matter, emailed his contact at the Department,
requesting that the Department “review the comments in the [Ellinger Submission] and comment
on this potential impact” when responding to the fiscal impact request. The afternoon of May
22, 2013, a second, different employee of the Department emailed the auditor‟s office stating:
“This initiative will have no impact on the Department…. Please contact me if you have
additional questions.” The following day, Mr. Halwes replied to the Department‟s email,
requesting, “[b]esides the response provided today [sic] please also comment on the revenue
impact to the state suggested in the [Ellinger Submission]. We need a response today – the fiscal
is due soon.” An hour later, he emailed again, “We need a response this morning.” After
7 approximately twenty-five minutes, at 10:05 am, the second Department employee replied,
“While we have no expertise in the area of the impacts of campaign spending, after reviewing
the proposed statement of fiscal impact, this does not change our response to the fiscal note.
This will not impact the Department of Revenue.”
What followed was a rapid exchange of emails between Mr. Halwes and the Department
employee meant to clarify the Department‟s perspective on the fiscal impact and the Ellinger
Submission, but which ultimately confused the issue even further:
Mr. Halwes (10:05 am): You do not think the proposal will impact revenue to the state?
Department employee (10:08 am): We would have no way of measuring the economic impact it may generate.
Mr. Halwes (10:08 am): The [Ellinger Submission] is projecting a decrease in state revenue not an increase.
Department employee (10:15 am): I‟m sorry. I meant that any campaign spending would generate.
Mr. Halwes testified that in the past, the Department of Revenue had responded to
initiative petitions that dealt with tax- or revenue-related matters by “providing what their
additional costs would be and… also… indicating what a fiscal impact would be on the State[.]”
He testified that because the Department was in a position to provide more information, he
thought it was prudent to follow up in this case by requesting that the Department comment on
the revenue impact to the state. Mr. Halwes testified that he thought the Department‟s email
response in this instance, however, indicated that “they were… specifically talking about the
department itself versus the state overall.” Mr. Halwes also believed the Department employee
was confused when she responded, “[w]e would have no way of measuring the economic impact
it may generate[,]” because Mr. Halwes felt this response indicated that “she was thinking it was
going to generate revenue rather than reduce revenue.”
8 The trial court made the following findings of fact regarding the Department of
Revenue‟s submission to the auditor:
5. The Department of Revenue initially submitted the following response: The initiative petition will have no impact on the Department…
5. [sic] The Department of Revenue was then contacted by the State Auditor‟s Office and the following exchange occurred:
State Auditor‟s Office (SAO): [P]lease also comment on the revenue impact to the state in the attached proposed statement of fiscal impact…
Department of Revenue (DOR): While we have no expertise in the area of the impacts of campaign spending… This will not impact the Department of Revenue
SAO: You do not think the proposal will impact revenue to the state?
DOR: We would have no way of measuring the economic impact it may generate
SAO: The submission is projecting a decrease in state revenue not an increase.
DOR: I‟m sorry. I meant that any campaign spending would generate.
6. The Fiscal Note includes the following language allegedly summarizing the Department of Revenue‟s responses:
[T]he Department of Revenue indicated this initiative petition will have no impact on their department. The officials indicated they had no way of measuring the proposals [sic] economic impact.
6. [sic] Mr. Halwes testified that the Department of Revenue did not do revenue projections or have economists on staff and further identified that the Department of Revenue reported staff and expenses impact only on prior tax revenue matters in Exhibits 16 and 17.
Based upon these findings, the trial court concluded that the Department of Revenue‟s
submission was unreasonable. The trial court concluded that
The Department had not reviewed the submission sent to the Department by the Auditor and that the Department did not understand the Auditor‟s request….
9 [T]he Auditor „summarized‟ the unreasonable response in the Fiscal Note itself. The Fiscal Note is insufficient and unfair because it included the unreasonable submission of the Department of Revenue.
The trial court concluded that the Department of Revenue did not review the Ellinger
Submission, despite the email explicitly stating “after reviewing the proposed statement of fiscal
impact [(the Ellinger Submission)], this does not change our response to the fiscal note.”
(emphasis added). In its findings of fact section, the trial court goes so far as to omit that portion
of the email exchange between the auditor‟s office and the Department, replacing it with an
ellipsis. Regardless of the trial court‟s ignoring the Department‟s explicit confirmation that it did
review the Ellinger Submission, the trial court‟s conclusion that the Department‟s submission
was not reasonable is erroneous. The trial court did not find, and the record does not support a
finding, that the Department of Revenue‟s submission diverged from the issue of the Initiative.
Rather, it addressed the issue of the Initiative directly, stating that “[t]his initiative will have no
impact on the Department.”
Although the auditor may conduct a follow-up inquiry with an entity whose submission
raises additional questions or appears incomplete, Brown, 370 S.W.3d at 649, there is no
authority requiring that the auditor send any entity the submission of another entity for review
nor requiring any entity to respond to the auditor‟s request for submissions at all, much less to
comply with a request to review the submission of another entity and comment on such
submission. In fact, the auditor‟s standard communication to the entities from which he solicits
submissions regarding an initiative petition reads, in relevant part: “The State Auditor‟s Office
has received the attached initiative petition. Please review the petition and determine the
estimated cost or savings, if any, this measure would have on your state or local government
entity.” (emphasis added). Furthermore, there was no communication from the auditor‟s office
10 until just days before the deadline requesting that the Department of Revenue comment on the
revenue impact to the state and on the Ellinger Submission‟s conclusions on the Initiative‟s
impact on state revenues, rather than just “the estimated cost or savings, if any… on your state or
local government entity” as initially requested.
The trial court may have confused “reasonable” in the legal sense with the failure of the
Department of Revenue to comply with the “reasonable” request of the auditor. The auditor
repeatedly requested the Department of Revenue to respond in some fashion to the conclusion
from the Ellinger Submission that the proposal would have a negative impact on state revenue.
The Department of Revenue assiduously avoided doing so, first commenting only as to the
potential impact on the Department, then, when pressed, pleading ignorance rather than
addressing the issue.
Nothing in the record indicates that the submission of the Department of Revenue
diverged from or did not address the particular issue of the Initiative. Because the Department‟s
submission addressed and did not diverge from the particular issue of the Initiative, it was
reasonable. Brown, 370 S.W.3d at 649. Because the Department‟s submission was reasonable,
the trial court erred in remanding the fiscal note for the preparation of a new fiscal note. Point I
is granted.
II. The Fiscal Note Summary Was Not Insufficient or Unfair
The trial court‟s conclusion that the fiscal note summary was insufficient and unfair is
anchored in its determination that the estimate of lost revenue in the Ellinger Submission should
have been included in the fiscal note summary.
The trial court‟s findings of fact relating to the sufficiency and fairness of the fiscal note
summary recited the testimony of Mr. Halwes regarding the Ellinger Submission:
11 16. [H]e found the Ellinger Submission both reasonable and complete.
17. [H]e found the numbers in the Ellinger Submission to be verifiable and . . . he had no submissions or facts before him to cast doubt on such numbers.
18. [I]t was his belief that the numbers in the Ellinger Submission were “speculative” based on his beliefs about the effects of the proposed measure.
19. [H]e had no experience or training in campaign matters, campaign finance matters or in economics or economic projections.
20. [H]e did not conduct any additional or independent research on the economic impact of campaign spending, and . . . he did not examine the effects that such campaign contribution limitations have had in other states.
21. [N]o submission conflicted with or called into question the Ellinger submission.
22. [H]e reviewed the documents and references in the Ellinger submission and they supported the estimates in the submission.
23. No submissions to the State Auditor suggest the numbers of the Ellinger Submission are “speculative.”
....
26. No submissions before the Auditor suggested a “positive impact[”] to revenues for either state or local government entities.
Based on these findings of fact, the trial court concluded that the portion of the fiscal note
summary stating “[a]ny potential impact to revenues for state and local government entities is
unknown” was insufficient and unfair. The trial court further concluded that the fiscal note
summary must reflect the numbers in the Ellinger Submission, which claimed that state
government revenue would decrease at least $7.39 million per year, that state government cost
would increase at least $127,000 annually, that there would be one time state government costs
of about $50,000, and that annual local government revenue would decrease by at least $1.2
million.
The trial court reasoned that (1) the only substantive responses as to local entities were
the Ellinger Submission, indicating a more than $1.2 million negative impact and supported by
12 verifiable source citations, and the City of Columbia‟s statement that “it is impossible for the city
to determine if this would increase or decrease contributions,” and (2) there were no submissions
suggesting a positive impact on local governmental entities; therefore, to be sufficient and fair
the fiscal note summary should have indicated that the impact to revenues of local government
entities would be negative. The trial court also reasoned that (1) the only substantive responses
as to state revenue impact were the Ellinger Submission, indicating a more than $7.3 million
negative impact, and the Department of Revenue‟s communications, which “did not . . . cast
doubt on the underlying assumptions or accuracy of the numbers in the Ellinger Submission[,]”
(2) the estimate in the Ellinger Submission was “the only number in a reasonable submission that
was provided to the Auditor[,]” and (3) no submissions indicated that the impact to state revenue
was unknown or would not be negative; therefore, the fiscal note summary should have indicated
that the impact to state revenue would be negative.
The trial court further concluded that the numbers from the Ellinger Submission should
be reflected in the fiscal note summary because they constituted an “exact estimate with data that
is verifiable[,]” and “[t]here is no basis in any of the submission[s] to the Auditor for [his]
finding” that “the numbers in the Ellinger submission were speculative.”
The fiscal note summary is required to be sufficient and fair pursuant to section
116.190.3. Insufficient in this context means “inadequate; especially lacking adequate power,
capacity, or competence[,]” and unfair means “marked by injustice, partiality, or deception.”
Brown, 370 S.W.3d at 653. Thus, the language of a fiscal note summary is considered sufficient
and fair if it “adequately and without bias, prejudice, or favoritism synopsize[s] the fiscal note.”
Id. at 654. It is important to note that a fiscal note summary is not required to “use the „best‟
language, set out all details of the proposed measure, or inform voters of an express amount of
13 potential costs of the initiative[,]” but rather to use fair language. Id. at 662, 654. The fifty-word
limit of the fiscal note summary necessitates “the exclusion of specific fiscal impact details that
might improve the summary but that are not required for it to be upheld as sufficient and fair.”
Id. at 667. The fiscal note summary must meet its purpose of “informing the public about the
proposed initiative‟s potential fiscal consequences . . . without using language that is likely to
cause bias, prejudice, deception, or favoritism for or against the proposal.” Id. at 662.
The following is the information received by the auditor that went into drafting the fiscal
note and fiscal note summary for the initiative in this case. The auditor sought comments from
fifty-one state agencies or other political subdivisions or entities. Twenty-five of those entities
responded, and Marc Ellinger also responded as an opponent of the proposal with a proposed
statement of fiscal impact. Eleven reported there would be no fiscal impact.
The Department of Elementary and Secondary Education reported there would be no
anticipated state cost associated with the proposal. Officials from the Department of Higher
Education said they do not anticipate that the proposal would have any direct, foreseeable fiscal
impact on their department. The Department of Insurance, Financial Institutions and
Professional Registration reported that the proposal will have no cost or savings to the
department. Officials from the Department of Mental Health said the proposal creates no direct
obligations or requirements to their department that would result in a fiscal impact. The
Department of Natural Resources did not anticipate a direct fiscal impact from the proposal.
Officials from the Department of Revenue indicated the proposal will have no impact on their
department, and said they had no way of measuring the proposal‟s economic impact. Officials
from the Department of Social Services said there is no direct fiscal impact to their department.
The Department of Conservation reported that no adverse fiscal impact to their department
14 would be expected as a result of the proposal. Officials from the City of Jefferson indicated that
they do not believe there will be a fiscal impact if the proposal becomes law. Officials from the
City of Raymore reported that they do not anticipate any fiscal impact.
The Attorney General‟s office assumed that any potential costs could be absorbed with
existing resources, but said it may seek future additional appropriations if significant litigation
results. Officials from the Secretary of State‟s office said they assume, for the purposes of the
proposal, that they should have the full appropriation authority they need to meet publishing
requirements, but they said they reserved the right to request funding to meet the cost of their
publishing requirements if the amount is changed or the estimated nature of their appropriation is
changed.
The Department of Corrections said the penalty provisions of the proposal have potential
fiscal impact but currently the number of new commitments which may result from the creation
of the offence(s) outlined in the proposal could not be predicted. If additional persons are
sentenced due to the penalty provisions, the department would incur increased direct offender
costs through incarceration (FY12 average $17.059 per offender per day, annual cost of $6,227
per inmate) or supervision by the Board of Probation and Parole (FY12 average $4.960 per
offender per day, annual cost of $1,810 per offender). Officials from the Missouri Ethics
Commission said the total cost for salaries, fringe benefits, equipment and expenses, local
assistance, and other costs will be $118,152 for FY 2014, $121,113 for FY 2015, and $122,339
for FY 2016.
Officials from the City of Columbia said the proposal appears to affect contributions to
committees that form to influence the result of local ballot issue elections, but it is impossible for
the city to determine if this would increase or decrease contributions and, as a result, the
15 potential for passage of issues for capital improvements. However, Mr. Halwes testified that the
$2,600 cap on campaign contributions would not apply to local ballot issues and ballot measure
committees.
The Ellinger Submission, as discussed previously, consisted of an analysis and attached
cited sources. The analysis concluded that state government revenue would decrease at least
$7.39 million per year, state government cost would increase at least $127,000 annually and
there would be one time state government costs of about $50,000. It concluded that annual local
government revenue would decrease by at least $1.2 million. However, it conceded that “there
has not been a comprehensive study regarding the fiscal impact of state elections on Missouri
state and local governments,” and contained no such economic study. Furthermore, the Ellinger
Submission purported to extrapolate from figures from Governor Nixon‟s 2012 campaign to all
other statewide campaigns for all future years. It claimed to predict with precision the actual
fiscal impact on state and local tax revenues that would result from such anticipated decreases in
campaign spending.
Mr. Halwes testified that he had many concerns about the speculations and assumptions
of the Ellinger Submission. Specifically, he found fault with the Ellinger Submission‟s
assumption that the percentage of campaign contributions to Governor Nixon‟s campaign in a
gubernatorial election year that would be affected by the proposed limit would be the same for
the campaigns in other years and for other offices. Mr. Halwes also reasoned that if the proposed
initiative campaign limitations went into effect, campaigns would be run differently and the
amounts collected would not necessarily simply decrease by the amount of past contributions
that exceeded the new limit.
16 Simply put, the auditor found the Ellinger Submission speculative and, as such,
discounted it. The trial court found that because the Ellinger Submission was the only
prognostication submitted to the auditor, it had to be accepted and set forth in the fiscal note and
reflected to some degree in the fiscal note summary. This is not the law and diminishes the role
of the auditor in the production of the fiscal note and fiscal note summary.
The fiscal note summary drafted by the auditor stated the following in full for the
initiative in this case: “It is estimated this proposal will increase state government costs by at
least $118,000 annually and have an unknown change in costs for local government entities.
Any potential impact to revenues for state and local governments is unknown.” Based on the
submissions before the auditor, the characterization of any potential impact to revenues for state
and local governments as “unknown” is “adequate[] and without bias, prejudice, or favoritism[.]”
Brown, 370 S.W.3d at 654. The majority of submissions indicated that there would be either no
impact or no “direct[,]” “foreseeable[,]” or “adverse” impact, or in some way indicated they at
least did not anticipate such impact. The use of the word “unknown” does not necessarily
convey that a possibility of a positive impact to state or local revenues is anticipated or
estimated, and adequately fulfills the fiscal note summary‟s purpose of “informing the public
about the proposed initiative‟s potential fiscal consequences . . . without using language that is
likely to cause bias, prejudice, deception, or favoritism for or against the proposal.” Brown, 370
S.W.3d at 662. Even if the fiscal note summary does not “use the „best‟ language, set out all
details of the proposed measure, or inform voters of an express amount of potential costs of the
initiative[,]” id., it does “adequately and without bias, prejudice, or favoritism synopsize the
fiscal note.” Id. at 654.
17 Use of the word “unknown” in the fiscal note summary to characterize potential impact to
revenues for state and local governments is sufficient and fair. The fifty-word limit of the fiscal
note summary necessitates “the exclusion of specific fiscal impact details[,]” such as those
contained in the Ellinger Submission, which “might improve the summary but that are not
required for it to be upheld as sufficient and fair.” Id. at 667. Therefore, the trial court erred in
remanding the fiscal note summary for preparation of a new fiscal note summary. Point II is
granted.
The judgment is reversed and the case is remanded for entry of judgment consistent with
this opinion.
_________________________________________ VICTOR C. HOWARD, JUDGE
All concur.