IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT
REX A. SINQUEFIELD, et al., )
)
Respondents, )
)
v. (Cole) ) Appeal No. WD77056
)
1ASON KANDER, SECRETARY OF )
STATE and THOMAS SCHWEICH, )
STATE AUDITOR, )
)
Defendants, )
)
and )
)
TODD S. 1ONES and MISSOURI )
ROUNDTABLE FOR LIFE, )
)
Appellants. )
REPLY BRIEF OF APPELLANTS TODD S. 1ONES
AND MISSOURI ROUNDTABLE FOR LIFE
D. John Sauer #58721
Clark & Sauer, LLC
7733 Forsyth Blvd., Suite 625
St. Louis, Missouri 63105
Phone: 314.814.8880
Facsimile: 314.332.2973
jsauerclarksauer.com
Attornev for Appellants Todd S. Jones
and Missouri Roundtable For Life
December 31, 2013
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................. ii
INTRODUCTION ................................................................................................. 1
ARGUMENT......................................................................................................... 3
I. The Auditor`s Inclusion oI the Department oI Revenue`s Response in the
Fiscal Note Was Fair and SuIIicient. ............................................................ 3
II. The Fiscal Note Summary Was SuIIicient and Fair Because the Auditor
Properly Exercised Its Discretion To Assign Lesser Weight to the
Speculative Projections oI the Ellinger Submission. .................................... 6
A. When Preparing the Fiscal Note Summary, the Auditor Has Discretion To
Assign Lesser Weight to Fiscal Projections That Are Based on Speculative
Assumptions. ............................................................................................. 6
B. The Auditor Correctly Discounted the Ellinger Submission as 'Based on
Speculation Long BeIore Trial, Due to the Speculative Nature oI the
Submission ItselI. .....................................................................................10
C. The Auditor Had No Basis To Conclude That the Proposal`s Impact on
State and Local Revenues Would Be Negative. ........................................16
CONCLUSION ....................................................................................................19
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TABLE OF AUTHORITIES
Cases
Bergman v. Mills, 988 S.W.2d 84 (Mo. App. W.D. 1999) .....................................18
Brown v. Carnahan, 370 S.W.3d 637 (Mo. Banc 2012) .......... 1, 3, 6, 7, 8, 9, 10, 15
Missouri Municipal League v. Carnahan, 303 S.W.3d 573 (Mo. App.
W.D. 2010) ........................................................................................................17
Missouri Municipal League v. Carnahan, 364 S.W.3d 548 (Mo. App. W.D.
2011) .................................................................................................................. 8
Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824 (Mo. banc
1990) .................................................................................................................. 1
Statutes
RSMo. 116.175 ..................................................................................................10
RSMo. 116.190 .............................................................................................. 5, 19
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INTRODUCTION
In Brown v. Carnahan, the Missouri Supreme Court stated oI citizen
initiatives: 'Nothing in our constitution so closely models participatory democracy
in its pure Iorm. Through the initiative process, those who have no access to or
inIluence with elected representatives may take their cause directly to the people.
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)).
Respondents in this casebillionaire political mega-donor Rex SinqueIield
and career lobbyist Travis Brownpresent the antithesis oI the Missouri Supreme
Court`s ideal oI 'participatory democracy in its pure Iorm. Id. They are
quintessential political insiders with maximal 'access to |and| inIluence with
elected representatives. Id. They seek to preserve their personal clout by using
litigation to derail a popular campaign Iinance reIorm proposal.
When the campaign Iinance reIorm proposal in this case was Iiled,
Respondents` lawyer submitted to the State Auditor a highly speculative statement
oI Iiscal impact. The submission was not prepared by an economist or Iiscal
expert, and Respondents have never produced any expert to deIend its analysis.
Even now, Respondents` BrieI on Appeal makes no attempt to justiIy its
speculative projections on their own merits.
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When the Auditor`s OIIice, quite reasonably, Iailed to include the
opponents` unsupportable projections in the Fiscal Note Summary, Respondents
Iiled suit in the Circuit Court oI Cole County. They have successIully tied up the
initiative process in litigation ever since.
This appeal presents the question whether the Auditor has discretion, when
preparing a Iiscal note summary, to assign lesser weight to submitted Iiscal
projections that are based on clearly unreasonable assumptions. Respondents
contend that the Auditor has no such discretion. Their contention is at odds with
the statutory language, governing case law oI this Court and the Missouri Supreme
Court, the longstanding practice oI the Auditor`s OIIice, and common sense. This
Court should swiItly reject Respondents` ill-considered arguments, reverse the
judgment oI the court below, and allow 'participatory democracy in its pure Iorm,
id., to take its valid course.
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ARGUMENT
I. The Auditor`s Inclusion of the Department of Revenue`s Response
in the Fiscal Note Was Fair and Sufficient.
Regarding Point I oI Appellants` Points on Appeal, Respondents contend
that the Department oI Revenue`s submission was unreasonable because the
Department supposedly Iailed to understand and adequately comment upon the
Ellinger Submission. Resp. Br. 14-15. But Respondents, like the circuit court, Iail
to cite any authority indicating that the Department oI Revenue had any obligation
to review the Ellinger Submission or comment upon it at all. See Resp. Br. 15; see
also Appellant`s Appendix ('App. App`x), at A14. In Iact, the Department oI
Revenue had no such obligation. See Brown v. Carnahan, 370 S.W.3d 637, 650
(Mo. Banc 2012).
Moreover, all that the Auditor requires to include a submission in the Iiscal
note (as opposed to the Iiscal note summary) is a determination that the submission
is 'complete and 'reasonable, in the very limited sense that 'the submission
inIormation addresses the proposal itselI. Tr. 15:9-19. The Auditor does not
screen submissions Ior substantive reasonableness prior to including them in a
Iiscal note. Brown, 370 S.W.3d at 649. Mr. Halwes determined the Department oI
Revenue`s response to be 'reasonable in this limited sense. Tr. 63-64. That
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determination was all that was required to warrant including the Department`s
response in the Fiscal Note.
In any event, Respondents` arguments that the Department oI Revenue Iailed
to review the Ellinger Submission and Iailed to understand the Auditor`s request
have no merit. The only evidence in the record as to whether the Department
reviewed the Ellinger Submission is the Department`s own statement: '!"#$%
%$&'$(')* #,$ -%.-./$0 /#!#$1$)# ." "'/2!3 '1-!2# |i.e. the Ellinger Submission|,
this does not change our response to the Iiscal note. App. App`x A102 (emphasis
added). Yet Respondents` brieI unaccountably omits this language in its quotation
oI the Department oI Revenue`s response. See Resp. Br. 7.
Respondents argue that the Department could not have reviewed the Ellinger
Submission because the Department`s response suggested that the Submission
projected an increase in state revenues, not a decrease. Resp. Br. 15. This is
incorrect. When the Auditor asked, 'You do not think the proposal will impact
revenue to the state?, the Department responded, 'We would have no way oI
measuring the economic impact it may generate. App. App`x A102. This
response did not Iorecast a positive 'economic impact, since an 'economic
impact may be either positive or negative. The Auditor evidently understood the
word 'generate, however, to imply that the Department contemplated only a
positive impact, and thus Iollowed up by stating, '|t|he submission is projecting a
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decrease in state revenue not an increase|.| Id. At that point, the Department
clariIied that it 'would have no way oI measuring the economic impact that 'any
campaign spending would generate. Id. Taken in context, the Department was
clearly stating that it had no way oI Iorecasting the proposal`s impact on Iuture
campaign spending, and thereIore it could not project its Iuture impact on state
revenues. This was a perIectly reasonable response to the Ellinger Submission.
Moreover, both the circuit court`s Judgment and 4$/-.)0$)#/5 .() 6%'$" .)
!--$!3 interpret the Department oI Revenue`s response in the very same terms as
did Mr. Halwes: 'AIter being given the Ellinger Submission to review prior to
their response, the Department oI Revenue indicated they were unable to
independently measure the economic impact. Resp. Br. 8; App. App`x, at A15.
The Department oI Revenue had no duty to review or comment on the
Ellinger Submission. But the Department oI Revenue did review it and provided
an eminently reasonable comment on it. Respondents` brieI does not provide any
reason why the inclusion oI the Department`s response in the Fiscal Note rendered
the Fiscal Note 'insuIIicient or 'unIair, RSMo. 116.190.3. Point I oI
Appellants` Points on Appeal should be sustained.
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II. The Fiscal Note Summary Was Sufficient and Fair Because the
Auditor Properly Exercised Its Discretion To Assign Lesser
Weight to the Speculative Projections of the Ellinger Submission.
Regarding Point II oI Appellants` Points on Appeal, Respondents advance
several arguments that the Fiscal Note Summary was insuIIicient and unIair.
These arguments are uniIormly without merit.
A. When Preparing the Fiscal Note Summary, the Auditor Has
Discretion To Assign Lesser Weight to Fiscal Projections That Are
Based on Speculative Assumptions.
Respondents` principal argument is that the Auditor lacks any discretion to
exercise independent judgment in reviewing submissions to prepare the Fiscal
Note Summary. See Resp. Br. 21-24. Respondents argue that Brown v. Carnahan,
370 S.W.3d 637 (Mo. banc 2012), holds that the Auditor is Iorbidden by statute to
conduct any independent assessment oI submissions. Id. at 21-23. This reading oI
Brown is plainly incorrect. Every quotation Irom Brown in Respondents` brieI
describes what the Auditor typically does, not what the Auditor is required to do.
See id. at 22, 23, 24. Nothing in Brown states that the Auditor is Iorbidden to
review and analyze submissions when preparing the Iiscal note summary. See
Brown, 370 S.W.3d at 648-50.
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On the contrary, Brown makes clear that the Auditor typically does conduct
an independent analysis oI submissions when preparing the fiscal note summarv,
though not when preparing the fiscal note. Relying on a selective quotation Irom
Brown, Respondents argue that '|i|t is not the auditor`s role to choose a winner
among those opposing viewpoints by independently researching the issue himselI
and double-checking economic theories and assumptions.. Resp. Br. 23
(quoting Brown, 370 S.W.3d at 650). But Respondents strategically omit the
conclusion oI the quote Irom Brown, which actually states: 'It is not the auditor`s
role to choose a winner among these opposing viewpoints, by independently
researching the issue himselI, double-checking economic theories and
assumptions, and adopting one side`s view over another`s ') #,$ %$/73#')* "'/2!3
).#$. Brown, 370 S.W.3d at 650 (emphasis added). In other words, Brown
merely stated that the Auditor typically does not conduct an independent
assessment oI submissions when preparing the fiscal notenot in preparing the
Iiscal note summary. Id. The Auditor`s normal practice, Iollowed in this case, is
to include all submissions verbatim or nearly verbatim in the Iiscal note.
By contrast, Brown clearly holds that the Auditor has discretion to exercise
reasonable judgment and discount Iiscal projections based on clearly unreasonable
assumptions, when preparing the fiscal note summarv. In Iact, the process oI
distilling the lengthy Iiscal notewhich oIten includes conIlicting Iiscal
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projectionsinto a 50-word synopsis could not possibly be accomplished without
the exercise oI such judgment. Thus, Brown explicitly endorsed the Auditor`s
discretion to assign lesser weight to submissions that are based on unreasonable
assumptions in preparing the Iiscal note summary: 'II the auditor concludes that a
submission is unreasonable, he or she determines what weight the submission will
be given when preparing the "'/2!3 ).#$ /711!%8. Id. at 649 (emphasis added).
See also id. at 662; Missouri Municipal League v. Carnahan, 364 S.W.3d 548, 554
(Mo. App. W.D. 2011) ('Mo. Mun. League II) (observing that the Auditor`s
authority under the statute is 'entirely discretionary).
Moreover, contrary to Respondents` argument, Resp. Br. 24, Brown`s
discussion oI the payday loan initiative squarely endorses the Auditor`s authority
to exercise such discretion in preparing the Iiscal note summary. In Brown,
opponents oI the payday loan initiative submitted a statement oI Iiscal impact that
projected $2.5 - $3.5 million in lost state revenues, and projected additional losses
due to unemployment payments. Brown, 370 S.W.3d at 665. In preparing the
Iiscal note summary, the Auditor`s OIIice accepted the Iormer projections as
reasonable, but rejected the latter: 'The auditor staIIer . testiIied that the $2.5-to-
$3.5 million lost revenue estimate reIerenced in the Iiscal note summary was
derived Irom the Iigures submitted in the . Iiscal impact submission. He testiIied,
however, that he did not include the proIessor`s prediction regarding lost
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unemployment beneIits because those are not Iunded through a government Iund.
Id. In other words, the Auditor`s OIIice exercised independent judgment in
reviewing the submission, and accepted some oI its projections, but rejected other
projections because they were not based on reasonable assumptions. The Auditor
exercised similar discretion in this case in discounting the projections oI the
Ellinger Submission. In Brown, the Missouri Supreme Court held that such
exercise oI discretion was proper, reversing the trial court`s holding to the
contrary. Id. at 666. This Court should do the same here.
Respondents rely on Browns discussion oI the '510 lenders issue in the
payday loan case to argue that the Auditor has no duty to conduct independent
investigations or consider Iacts outside the submissions beIore it in preparing the
Fiscal Note Summary. Resp. Br. 24 (quoting Brown, 370 S.W.3d 666-67). This
argument is entirely beside the point. In its discussion oI the '510 lenders issue,
Brown held simply that 'nothing required the auditor to look beyond the
inIormation he was provided in assessing the Iiscal impact on those lenders.
Brown, 370 S.W.3d at 667. In this case, Appellants do not contend that the
Auditor was required to 'look beyond the inIormation he was provided in the
Ellinger Submission. In Iact, the circuit court plainly erred by holding that Mr.
Halwes was required to do so. App. App`x, at A16. Rather, Appellants contend
that the Auditor was entitled to look at the Ellinger Submission itselI and 'assess
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its speculative and unreasonable projections, rather than blindly including them in
the Fiscal Note Summary. RSMo. 116.175.1. Brown explicitly contemplates
that the Auditor should do this. Brown, 370 S.W.3d at 649.
B. The Auditor Correctly Discounted the Ellinger Submission as ~Based
on Speculation Long Before Trial, Due to the Speculative Nature of
the Submission Itself.
Respondents contend that the Auditor`s decision to grant lesser weight to the
Ellinger Submission was based on Iacts that were not adduced until trial, rather
than upon the plainly speculative nature oI the Submission itselI. Resp. Br. 21, 22,
23. This contention is demonstrably erroneous. In interrogatory responses
prepared long beIore trial, Mr. Halwes attested that, in preparing the Fiscal Note
Summary, '|l|ess weight was given to the Ellinger Submission due to the
speculative nature oI the analysis. Other responses contained limited or no
speculation. LF 397; see also Tr. 76-77. He identiIied the basis Ior discounting
the Ellinger Submission`s projections oI impact on state and local revenues by
stating, with respect to each, '|t|he Iinding is speculative. It is not clear that the
proposed results would occur iI the proposed changes were applied to a prior
campaign that was conducted under current campaign Iinance laws. LF 401.
Similarly, in his trial testimony, Mr. Halwes repeatedly aIIirmed that he had
deemed the Ellinger Submission speculative and assigned it lesser weight when he
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prepared the Fiscal Note Summary in May 2013. See Tr. 71 (testiIying that, while
he was preparing the Fiscal Note Summary, 'it was not clear to me what the
revenue change was going to be Ior . state and local government); id. at 73
(testiIying that, as he prepared the Fiscal Note Summary, Mr. Halwes 'couldn`t
determine Irom the Ellinger Submission the 'speciIic impact on state and local
revenues, and thus assigned the Ellinger Submission 'lesser weight); id. at 79-80
(testiIying that, in preparing the Fiscal Note Summary, Mr. Halwes questioned the
Ellinger Submission`s 'assumption that only entities that contributed would be the
same entities that would contribute in the subsequent election and, thereIore, you
would be limited in that manner).
Respondents contend that Mr. Halwes did not consider the possibility that
'smaller contributors might become more proliIic and total money in politics
would not be aIIected by the proposed measure, until this possibility was raised
by Appellants` counsel at trial. Resp. Br. 29. Again, this contention contradicts
the record. At trial, during questioning by the Auditor`s counsel prior to
examination by Appellants` counsel, Mr. Halwes speciIically adverted to the
possibility that the proposal might result in larger numbers oI smaller contributions
Irom smaller donors. He testiIied that the proposed initiative would not 'limit the
number oI people that can contribute to a campaign to the limit oI |$|2,600, and
agreed that '|y|ou can have more people contributing to a campaign than people
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that contributed to Governor Nixon`s last campaign. Tr. 73-74. He also agreed,
upon questioning Irom the Auditor`s counsel, that 'no one has any idea how much
anyone might contribute to a campaign either now or in the Iuture. Tr. 68.
In sum, Mr. Halwes arrived at his conclusion that the Ellinger Submission
was irreducibly 'speculative and 'based on speculation, Tr. 55, 68, when he was
preparing the Fiscal Note Summary in May oI 2013, many months beIore his trial
testimony. He consistently testiIied to this conclusion, repeating many times that it
was simply impossible to predict the proposal`s actual impact on Iuture campaign
spending. Tr. 50, 51-52, 55, 58, 68, 71, 73, 74, 79-80. Moreover, during his
examination by Appellants` counsel, Mr. Halwes acknowledged a lengthy catalog
oI speculative and unwarranted assumptions in the Ellinger Submission, all oI
which buttressed his conclusion that the Submission was speculative and entitled to
lesser weight. Tr. 80-90. He concluded by testiIying that '|t|here is a lot oI
estimates and speculation in the numbers oI the Ellinger Submission. Tr. 89.
Notwithstanding the maniIestly speculative analysis oI the Ellinger
Submission, Respondents argue that 'there were no grounds Ior |the Auditor| to
Iind the Ellinger Submission speculative, because it was supposedly supported by
'veriIiable source citations. Resp. Br. 25; see also id. at 8, 20. But the Auditor
did not discount the Ellinger Submisison`s analysis on the basis that it lacked
veriIiable citations; the Auditor discounted the Submission because it added a long
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series oI highly implausible, unjustiIied assumptions to those citations, and then
drew wholly unreasonable inIerences Irom those unjustiIied assumptions. See Tr.
50, 51-52, 55, 58, 68, 71, 73, 74, 79-80. 'VeriIiable citations do not yield
reasonable conclusions when mixed with wildly speculative analysis.
Respondents repeatedly seek to Iault Appellants, as proponents oI the
initiative, Ior Iailing to submit a statement to the Auditor rebutting the Iaulty
analysis in the Ellinger Submission. Resp. Br. 22 n.3, 23, 29. This argument is
legally irrelevant, since the initiative`s proponents had no obligation to submit any
statement to the Auditor, and the Auditor correctly discounted the Submission`s
analysis without proponents` input in any event. Moreover, Respondents`
contention that 'Appellants themselves could have made a submission to the State
Auditor suggesting that the Ellinger Submission is speculative,` but they chose not
to do so, id. at 22 n.3, is incorrect. As Respondents are no doubt aware,
Appellants had no notice or opportunity to respond to the Ellinger Submission
while the Fiscal Note was being prepared. The Auditor issued a request Ior
submissions with a Iirm deadline oI May 15, 2013. L.F. 547 (Auditor`s email
requesting responses 'on or beIore May 15, 2013) (bold in original). It appears
that the Ellinger Submission was submitted at or aIter that deadline, thus allowing
no time Ior any proponent to respond. L.F. 545 (Auditor`s copy oI the Ellinger
Submission, showing a date stamp oI '5/16/2013 11:45 AM). Moreover, the
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Auditor did not Iorward the Ellinger Submission to any proponents Ior comment,
so the proponents had no notice oI the arguments in the Ellinger Submission until
the Fiscal Note was Iinalized and published.
For similar reasons, Respondents` repeated contention that the Auditor was
bound to accept the Ellinger Submission because 'no other submission
contradicted or conIlicted with the Ellinger Submission, Resp. Br. 8, has no merit.
No other entity had any opportunity to address the speculative analysis oI the
Ellinger Submission except Department oI Revenue and the Attorney General`s
OIIice, which received it Irom Mr. Halwes. See Tr. 16:13-16. And Mr. Halwes
only requested a response to the Submission`s projections Ior state revenues Irom
the Department oI Revenue. Tr. 18, 23. As noted above, the Department reviewed
the Ellinger Submission and concluded that 'we would have no way oI measuring
the economic impact that 'any campaign spending would generate. App. App`x
A102. In other words, the only entity to review the Ellinger Submission`s
projections beIore the Fiscal Note was Iinalized Iound its analysis unconvincing
and discounted it, just as Mr. Halwes did.
Respondents contend that the Auditor had no basis to disregard the
projections in the Ellinger Submission because Mr. Halwes testiIied that the
Ellinger Submission was 'reasonable. Resp. Br. 25, 27 & n.4. This argument
equivocates on the word 'reasonable. As noted above, Mr. Halwes testiIied that
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he deemed the Ellinger Submission 'reasonable in the very limited sense that 'the
submission inIormation addresses the proposal itselI. Tr. 15:18-19. Based on this
determination, Mr. Halwes included the Ellinger Submission verbatim in the Fiscal
Note. But Mr. Halwes did not deem the Ellinger Submission 'reasonable in the
sense oI being analytically convincing. Rather, he deemed it to be 'speculative
and 'based on speculation, and thus entitled to 'lesser weight in preparing the
Fiscal Note Summary. Tr. 55, 68, 73. This determination was a valid exercise oI
the Auditor`s broad discretion. Brown, 370 S.W.3d at 649.
Finally, it is extremely telling that Respondents` BrieI lacks any deIense oI
the Ellinger Submission on its own merits. Respondents` argument that 'the
Ellinger Submission is not speculative, Resp. Br. 25, consists entirely oI the
specious argument that Mr. Halwes did not determine it to be so, based on
quotations Irom the testimony oI Mr. Halwes wrenched Irom their proper context.
See id. Nowhere do Respondents attempt to argue that the Ellinger Submission`s
projections are valid and convincing on their own terms. The Ellinger Submission
was draIted, not by any economic or Iiscal expert, but by Respondents` trial
counsel. Respondents advanced no substantive deIense oI it at trial, as they did not
call any expert witness to deIend the Ellinger Submission. On appeal, they make
no attempt to deIend or justiIy its numerous speculative assumptions. Mr. Halwes
did not err in discounting projections that even Respondents decline to deIend.
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C. The Auditor Had No Basis To Conclude That the Proposal`s Impact
on State and Local Revenues Would Be Negative.
Respondents contend that the Fiscal Note Summary must include the word
'negative, on the ground that 'the Fiscal Note Summary misleads potential
signors and voters to the conclusion that the impact oI the proposed measure could
be positive, when it most certainly will not. Resp. Br. 28. This contention has no
merit. The only submission that projected a negative impact on state and local
revenues was the Ellinger Submission, which the Auditor properly discounted due
to its speculative nature. Every other submission that addressed the potential
impact on state or local revenues stated either that there would be no impact at all,
or that it was impossible to predict whether the impact would be positive or
negative. As to state revenues, the Department oI Revenue stated that 'they had no
way oI measuring the proposal|`|s economic impact. App. App`x A36. As to
local revenues, the City oI JeIIerson indicated that 'they do not believe there will
be a Iiscal impact iI that petition becomes law. App. App`x A37. The City oI
Kansas City 'indicated no Iiscal impact on their city. Id. The City oI Raymore
'indicated they do not anticipate any Iiscal impact. Id. And the City oI Columbia
stated that '|i|t is impossible Ior the city to determine iI this would increase or
decrease |campaign| contributions. Id.
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In other words, the Auditor received multiple submissions aIIirmatively
indicating that there would be no Iiscal impact at all, and one submission (the City
oI Columbia`s) indicating that it was impossible to tell whether campaign
contributions (and thus campaign spending) would increase or decrease. Id. The
only submission predicting a negative impact was the Ellinger Submission, which
the Auditor discounted as speculative. Accordingly, it was eminently 'Iair and
'suIIicient Ior the Auditor to summarize the proposal`s impact on state and local
revenues by stating: 'Any potential impact to revenues Ior state and local
governmental entities is unknown. App. App`x A96.
For these reasons, Respondents` attempt to distinguish Missouri Municipal
League v. Carnahan, 303 S.W.3d 573 (Mo. App. W.D. 2010) ('Mo. Mun. League
I), is unconvincing. In that case, this Court upheld a Iiscal note summary that
stated that '|t|he total cost or savings to state or local governmental entities is
unknown. Id. at 583. Respondents contend that Missouri Municipal League I is
distinguishable on the ground that, in this case, 'there were not several
submissions indicating unknown costs or savings or providing conditional
responses. Resp. Br. 28. For the reasons just stated, this is incorrect. The
Department oI Revenue, the City oI JeIIerson, the City oI Raymore, the City oI
Kansas City, and the City oI Columbia all provided responses that were either
conditional (City oI Columbia) or indicated unknown costs or savings (all the
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others). In Iact, the majority oI submissions to address the issue projected no
impact at all on state or local revenues. Accordingly, it would have been unIair
and misleading Ior the Fiscal Note Summary to Iorecast a 'negative impact on
state or local revenues, because the decisive majority oI submissions indicated that
the initiative would not have a negative impact.
Moreover, even iI the Ellinger Submission had been the only submission to
address the impact on state and local revenues, the Fiscal Note Summary would
still have been Iair and suIIicient. 'All oI the details oI a Iiscal note need not be set
out in a summary consisting oI merely IiIty words. Id. at 583 (citing Bergman v.
Mills, 988 S.W.2d 84, 92 (Mo. App. W.D. 1999)). As Mr. Halwes testiIied, the
Ellinger Submission`s speculative analysis Iailed to establish even that the impact
on state and local revenues, iI any, would necessarily have been negative. Tr.
50:23-24 ('Will it be less? Maybe. Could it be more? Probably not. But that
amount would be unknown.); Tr. 55 (testiIying that 'it could be less, and it
'could be a negative impact, without conceding that it necessarily would be); Tr.
68 (testiIying that 'no one has any idea how much anyone might contribute to a
campaign either now or in the Iuture).
For all these reasons, the Auditor acted well within its broad statutory
discretion in assigning lesser weight to the Ellinger Submission and stating, in the
Fiscal Note Summary, that '|a|ny potential impact to revenues Ior state and local
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governmental entities is unknown. App. App`x A96. This statement was neither
'insuIIicient nor 'unIair. RSMo. 116.190.3. Point II oI Appellants` Points on
Appeal should be sustained.
CONCLUSION
For the reasons stated, Appellants Todd S. Jones and Missouri Roundtable
For LiIe respectIully request that this Court reverse the judgment oI the circuit
court and remand with instructions that the circuit court certiIy the Fiscal Note and
Fiscal Note Summary to the Secretary oI State, pursuant to 116.190.4, RSMo.
Dated: December 31, 2013 RespectIully submitted,
/s/ D. John Sauer
D. John Sauer #58721
Clark & Sauer, LLC
7733 Forsyth Blvd., Suite 625
St. Louis, MO 63105
314-814-8880
314-332-2973 (Iacsimile)
jsauerclarksauer.com
Attornev for Appellants Todd S. Jones
and Missouri Roundtable For Life
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CERTIFICATE OF COMPLIANCE
The undersigned certiIies that the Ioregoing Reply BrieI oI Appellants Todd
S. Jones and Missouri Roundtable For LiIe complies with the requirements oI Rule
84.06(c), and that:
1. The signature block contains the inIormation required by Rule 55.03;
2. This Reply BrieI complies with the limitations contained in Rule 84.06(b)
and Local Rule XLI; and
3. This BrieI contains 4,336 words, excluding those portions that are excluded
Irom the word count by Rule 84.06(b), as determined by the word-counting
Ieature oI MicrosoIt Word 2010; and
4. Three hard copies oI this brieI are being sent on this date to the Missouri
Court oI Appeals, Western District, pursuant to Local Rule XII(D).
Dated: December 31, 2013
/s/ D. John Sauer
D. John Sauer, #58721
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CERTIFICATE OF SERVICE
The undersigned certiIies that a true and correct copy oI the Ioregoing was Iiled
electronically on December 31, 2013, to be served by operation oI the Court`s electronic
Iiling system upon the Iollowing registered users:
Marc H. Ellinger
Blitz, Bardgett & Deutsch, L.C.
308 E. High Street
Suite 301
JeIIerson City, MO 65101
mellingerblitzbardgett.com
Attornev for Plaintiffs Rex A.
Sinquefield and Travis H. Brown
Darrell L. Moore
ChieI Litigation Counsel
Missouri State Auditor`s OIIice
301 W. High Street
Suite 880
JeIIerson City, MO 65101
Darrell.Mooreauditor.mo.gov
Attornev for Auditor Thomas A.
Schweich
Jeremiah J. Morgan
Deputy Solicitor General
Assistant Attorney General
P.O. Box 899
JeIIerson City, Missouri 65102
Jeremiah.Morganago.mo.gov
Attornev for Secretarv of State Jason
Kander
/s/ D. John Sauer
D. John Sauer #58721
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