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Judge rules Missouri attorney general acted illegally in blocking abortion rights ballot issue

Missouri Attorney General Andrew Bailey speaks to The Federalist Society on the Missouri House of Representatives floor Friday. (Annelise Hanshaw/Missouri Independent)
Annelise Hanshaw
Missouri Independent
Missouri Attorney General Andrew Bailey speaks to The Federalist Society on the Missouri House of Representatives floor Friday. (Annelise Hanshaw/Missouri Independent)

In the ruling, a Cole County judge said that Missouri Attorney General Andrew Bailey had an "absolute absence of authority" in refusing to accept the state auditor's estimate for an abortion rights initiative petition and attempting to falsely inflate the cost. Bailey's office said it would appeal the decision.

In a scathing denunciation of Attorney General Andrew Bailey’s legal arguments, a Cole County judge on Tuesday set a 24-hour deadline for the AG to certify a fiscal note summary for an abortion rights initiative petition.

Circuit Judge Jon Beetem rejected every claim of authority made by Bailey for refusing to accept State Auditor Scott Fitzpatrick’s estimate of the potential cost of the proposal.

“There is an absolute absence of authority to conclude the Attorney General is permitted to send the auditor’s fiscal note summary back for revision simply because he disagrees with the auditor’s estimated cost or savings of a proposed measure,” Beetem wrote in the 28-page opinion.

Beetem issued his ruling about two weeks after conducting a one-day trial over Bailey’s effort to pressure Fitzpatrick to raise his estimate. He rejected Bailey’s effort to force Fitzpatrick to include “verbatim estimates from opponents that put the cost at $6.9 trillion” in the fiscal note summary.

Fitzpatrick found it had no significant impact on state funds and that one local government had estimated a long-term cost at $51,000.

In a statement issued after the ruling, Bailey’s office said it would be appealing the decision.

In addition to the attorney general, the lawsuit named Fitzpatrick and Secretary of State Jay Ashcroft as respondents. Ashcroft was dismissed from the case before the trial, and Beetem ruled against the counts focused on Fitzpatrick.

Filed by Anna Fitz-James, the named petitioner on 11 nearly identical submissions, and backed by the ACLU of Missouri, the lawsuit seeks to force a final certification so signature gathering can begin. The backers expressed pleasure at the strength of the decision but noted that a certification process, which should take no more than 54 days, has lasted for more than 100 days.

More than 100,000 signatures from voters must be submitted by early May 2024 for the abortion rights measure to make the November ballot.

“In recent months, the Attorney General has unveiled a reckless desire to impose his will on Missourians’ access to health care by violating the constitutional bounds the people of the state have granted the office to which he was appointed,” Tony Rothert, from the ACLU of Missouri, said in a news release. “His illegal actions have obstructed the statutorily prescribed timeline twice over, showing a depth of antipathy towards our right to direct democracy in an attempt to prevent Missourians from voting for their reproductive freedom.”

Fitzpatrick — a former legislator and state treasurer who has been backed throughout his career by anti-abortion groups — issued a statement praising Beetem’s decision.

“As someone who is steadfastly pro-life, I am personally opposed to these ballot initiatives and the taking of innocent lives,” Fitzpatrick said. “However, I firmly believe my personal stance cannot and should not impact the duty my office has to provide voters with an unbiased assessment of each measure’s fiscal impact. I appreciate the decision of the court to uphold the process that has been in place for decades so my office can continue to create fiscal notes that are as fair and accurate as possible.”

Fitzpatrick, a Republican, was elected auditor in November, securing his second statewide election victory. Bailey, a Republican who formerly was general counsel for Gov. Mike Parson, was appointed in January and will face voters for the first time in a contested primary next year.

The initiative effort began when 11 versions of a proposed constitutional amendment seeking to roll back Missouri’s ban on abortion were filed in early March with the secretary of state’s office.

The proposals would declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.” That would include “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.”

Penalties for both medical providers and patients seeking reproductive health care would be outlawed.

The process after filing a ballot proposal is for Ashcroft to send it to Fitzpatrick’s office for fiscal analysis, and for Bailey’s office to check that it is presented as required by law. When Fitzpatrick has finished his work, the result is sent to Bailey to make sure it, too, meets the legal requirements of being less than 50 words and including a statement about cost.

After consulting 60 state and local agencies, Fitzpatrick included the estimate from Greene County that 135 fewer future residents as a result of abortions would mean a cost of $51,000 in lost revenue.

Bailey rejected the summary, arguing it was insufficient and misleading. Records obtained by The Independent showed Bailey wanted Fitzpatrick to say the measure would endanger all Missouri’s Medicaid funding and to use Greene County’s estimate as the basis for a statewide revenue loss.

The judge noted that Fitzpatrick knew that Bailey was wrong, and that the Department of Social Services — responsible for managing Medicaid — saw no conflict with federal law.

And, Beetem wrote, what Fitzpatrick said in the fiscal note summary was immaterial to whether it was legally sufficient.

Bailey had “no authority to conduct an investigation of the underlying fiscal impact,” Beetem wrote. And, he added, Bailey had no authority to decide whether Fitzpatrick’s summary was fair.

“He does not like the fiscal conclusion reached by the auditor, and believes that because the auditor’s fiscal conclusions are not identical to his own, the auditor’s language is necessarily argumentative and prejudicial,” Beetem noted.

If Bailey had the authority he claimed and could force Fitzpatrick to certify a fiscal note summary he disagreed with, the judge wrote, the “auditor would be placed in the peculiar position of having to sue himself to challenge his own fiscal note summary.”

The attorney general had that authority at one time, Beetem continued, but the legislature repealed it in 1980.

“It is illogical to conclude that the General Assembly repealed the attorney general’s authority to draft fiscal note summaries,” he wrote, “but silently intended for the attorney general to be able to substitute his judgment as to the estimated cost or savings of a measure for that of the auditor’s.”

This story was originally published on the Missouri Independent.

Rudi Keller covers the state budget, energy and the legislature for the Missouri Independent.
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