Did the Missouri AG approve the ballot summary for the 2020 initiative to tax capital gains and dividends to fund renewable energy?

Plain-English summary

Under Missouri's initiative process, once a proponent submits an initiative petition to the Secretary of State, the Secretary prepares a "summary statement" that will appear on circulator petition sheets and (ultimately) the ballot. The Attorney General is then required by § 116.334, RSMo, to review that summary statement for legal content and form, and either approve it or send it back for revision. The AG's role is narrow: it is a legal review, not a policy endorsement of the underlying petition.

In this opinion, Attorney General Eric Schmitt approved the Secretary of State's summary for the Winston Apple petition, designated 2020-049, which proposed to amend Chapters 143 and 286 of the Revised Statutes of Missouri. The substance of the petition was a state tax on long-term capital gains and qualified dividends, set at the difference between federal tax actually paid on those gains and dividends and the federal tax that would have been paid had the gains or dividends been taxed as ordinary marginal income. Revenue from the tax would be earmarked to increase the share of Missouri electricity from clean, renewable sources, with a 90%-or-more target.

The AG's letter expressly noted that statutory review is not an endorsement, and nothing in the opinion expresses a view on the policy merits of the petition. The opinion is one paragraph of substance plus the standard "do you want to change Missouri law to . . ." ballot summary text the Secretary of State proposed.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a summary statement under § 116.334?

It is the short plain-language description that the Secretary of State prepares for an initiative petition. The summary appears on the front of each circulator petition sheet and, if the petition makes the ballot, becomes the basis for the ballot title that voters see. § 116.334 sets out the Secretary's responsibility to prepare the summary and the AG's role in reviewing it for legal content and form.

Does AG approval mean the AG supports the policy?

No. The opinion expressly disclaims any endorsement. The AG is reviewing the legal content and form only.

What happens if the AG rejects the summary?

The opinion does not address rejection directly, but in practice the Secretary of State either revises the summary and resubmits it, or proceeds in a way that allows judicial review. Other 2019 MO AG opinions in this series (for example, Opinion No. 80-2019) address rejection of petition sufficiency under a different review path.

What did the underlying petition (2020-049) propose?

A state tax on long-term capital gains and qualified dividends, calculated as the difference between actual federal tax paid on those gains and the federal tax that would have been paid had those gains been taxed at the ordinary marginal income rate. Revenue would fund a transition toward at least 90% clean, renewable electricity in Missouri.

Did the petition make the ballot?

This opinion only covers the AG's procedural approval of the summary statement. Whether the petition collected enough signatures to qualify for the ballot, and whether voters approved it, are downstream questions outside the scope of the opinion.

Background and statutory framework

Chapter 116 of the Revised Statutes of Missouri sets out the initiative and referendum process. Several AG opinions issue from this process every year, often clustered in spring and early summer as proponents submit petitions for the next election cycle. The petition number "2020-049" identifies it within the Secretary of State's docket. The internal reference at the bottom of the opinion ("OP-2019-0081") is the AG office's own filing number.

Citations

• § 116.334, RSMo (AG review of initiative summary statements)
• Chapters 143 and 286, Revised Statutes of Missouri (statutes the petition proposed to amend)
• Initiative Petition 2020-049 (Apple)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/78-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT

April 26, 2019
OPINION LETTER NO. 78-2019

The Honorable John R. Ashcroft
Missouri Secretary of State
James C. Kirkpatrick State Information Center
600 West Main Street
Jefferson City, MO 65101

Dear Secretary Ashcroft:

This opinion letter responds to your request dated April 16, 2019, for our review under § 116.334, RSMo, of a proposed summary statement prepared for the petition submitted by Winston Apple regarding a proposed amendment to amend Chapters 143 and 286, Revised Statutes of Missouri (2020-049). The proposed summary statement is as follows:

Do you want to change Missouri law to:

• impose a state tax on long-term capital gains and qualified dividends (gains and dividends) in an amount equal to the difference between the federal taxes paid on gains and dividends and the rate that would have been paid had the gains or dividends been taxed as marginal ordinary income; and

• use these tax revenues to increase the percentage of electricity generated by clean, renewable sources in Missouri until 90% or more of the state's electricity is from clean, renewable sources?

Pursuant to § 116.334, RSMo, we approve the legal content and form of the proposed statement. Because our review of the statement is mandated by statute, no action that we take with respect to such review should be construed as an endorsement of the petition, nor as the expression of any view regarding the objectives of its proponents.

Very truly yours,

ERIC S. SCHMITT
Attorney General

Broadway Building
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-0774
www.ago.mo.gov

OP-2019-0081