Plaintiffs in a lawsuit that’s been rejected twice in Missouri courts are hoping the state’s high bench reverses those decisions and blocks a November ballot measure.

Conservative activist Ron Calzone and Republican State Representative Mike Moon of Ash Grove have petitioned the Missouri Supreme Court to hear their case which seeks to remove Proposition D from November’s ballot.  They’re hoping to hear back from the court before the end of the week as there is a September 28th deadline after which court action would not impact ballot measures.

Their lawsuit is based on procedural maneuvers undertaken by the legislature.

The measure was originally drawn up to establish a state tax exemption on prizes won in Olympic competition but was amended to include two additional provisions – one calling for a public vote on the motor fuel tax, and another to create an emergency road fund in which the legislature can deposit state funds.

Calzone and Moon think the purpose of the bill was expanded too broadly, noting its title had to be changed from “tax deduction” to “relating to state revenue” in order to include a tax increase for the motor fuel levy.

They claim the move violated the state constitution which requires all bills to pertain to a single subject.  Attorneys defending the ballot measure have successfully argued so far that the single-subject requirement for bills doesn’t apply to referendums such as Proposition D that go before voters.

The lawsuit was first dismissed in mid-Missouri’s Cole County Circuit Court in mid-August before the Missouri Court of Appeals-Western District in Kansas City did the same Tuesday.

The appeals court agreed with attorneys representing the ballot measure that nothing in the case supported “pre-election judicial review”.  Voters had not weighed in yet and there was not a motor fuel tax increase in place that would impact the plaintiffs or the public.

Representative Moon hopes the Supreme court will take the case and consider the taxpayer expense from the newspaper advertising required for the ballot measure, which is estimated to be $400,000.

“That may not be a whole lot of money in the whole context of the state budget, but to me and perhaps you and others, $400,000 is a lot of money,” said Moon.  “And we shouldn’t just be flippantly throwing it around.”

The Representative from southwest Missouri also thinks lawmakers pulled an unconstitutional maneuver when they slapped a “referendum clause” onto the bill so it would be placed on the ballot.

“Now it doesn’t go to the governor which constitutionally all bills must be presented to the governor,” said Moon.  The ballot measure was sent to the secretary of state, who certified it for the ballot.  Secretary of State Jay Ashcroft is named as the defendant in the lawsuit.

In addition, Moon also thinks voters will be swayed by the ballot measure’s language, which begins by asking if the law should be amended to fund Missouri state law enforcement by increasing the motor fuel tax.

“People have a soft spot for law enforcement, and we do need good law enforcement,” Moon said.  “But they’re going to look at that part of the question alone, I would imagine, and check off the whole thing.  I think that’s deceptive.”

Road funding by law must be directed to the State Highway Patrol before it can flow through to the Department of Transportation for highway projects.

The bill as passed and certified by Secretary Ashcroft will ask voters to cast a ballot on three separate provisions, all at once on the same ballot measure.

They’ll be asked if they want to increase the motor fuel tax, exempt Olympic (as well as Special Olympic, Paralympic) prizes from state taxes, and establish the Emergency State Freight Bottleneck Fund.

The Bottleneck Fund would create a dedicated fund for certain road projects in order to reduce traffic bottlenecks that affect freight.

A single yes vote would be a vote in favor of all three provisions in Proposition D.

The motor fuel tax is the only portion of the ballot measure that must receive the OK of voters.  A portion of Missouri law known as the Hancock Amendment requires legislation that raises at least $102.9 million in taxpayer money to be placed on the ballot

The motor fuel tax increase, when fully implemented, is projected to provide $288 million in additional resources annually to MoDOT for use on roads and bridges.  Another $123 million would flow to cities and counties for local road maintenance and improvement.