A new law that gave Missouri’s attorney general the sole power to appeal preliminary injunctions is unconstitutional, a Cole County judge ruled Tuesday.
“Access to courts, including the right to appeal, is a fundamental right for the purposes of equal rights and opportunity under the law,” Circuit Judge Daniel Green wrote.
This law, he said, “impinges” on that right because it only grants authority to appeal a preliminary injunction in which a state or state official is involved, and then only to the attorney general.
“There is no compelling governmental interest achieved in allowing only the attorney general to appeal a preliminary injunction where a court has found that a challenged state law is flawed and granted injunctive relief,” Green wrote.
Officials with Missouri Attorney General Catharine Hanaway’s office in a statement Wednesday said they “strongly disagree” with Green’s decision.
“We will move to appeal that aspect of the judgment to safeguard the General Assembly’s legislative intent and protect the rights of Missourians,” the statement read.
Green ruled in a case filed in April by attorney Chuck Hatfield on behalf of longtime progressive activist Sean Nicholson. They argued that several provisions of the law run afoul of the state constitution, including provisions revising how ballot title challenges are handled by the courts.
But in his ruling, Green upheld most of the bill as constitutional.
Under the law, any ballot title deemed insufficient or unfair is sent back to the secretary of state up to three times for revision. If, after three attempts, the courts still find the language unacceptable, a judge is then allowed to write the language.
The new ballot title challenge procedure is being used for the first time in a separate case in Green’s court.
On Friday, Green ruled that the ballot title for a measure passed by lawmakers, which failed to plainly state that the amendment would ban abortion, was “insufficient and unfair” and must be rewritten.
That amendment seeks to again ban abortion in Missouri, with limited exceptions for survivors of rape and incest and for medical emergencies. The ballot title, as prepared by lawmakers, does not mention that it would make most abortions illegal.
Green gave Missouri Secretary of State Denny Hoskins until Friday to draft new language.
The new law also increased the length of summary statements for ballot measures proposed by the Missouri General Assembly, to 100 words rather than 50. The law also moves up the deadline for completing all court challenges to 10 weeks before the election – two fewer weeks than what was previously allowed
Hatfield on Wednesday morning maintained that the rest of the bill was “procedurally improper” and said he plans to appeal Green’s decision to uphold the rest of the law as constitutional.
“It’s an important issue because it changes the way we do ballot title re-writes,” Hatfield said. “And there are several cases right now in Cole County that involve possible ballot title re-writes.”
Ongoing legal battles over access to abortion in Missouri were the impetus for the new law.
Ahead of the 2024 General Election, Cole County Circuit Judge Jon Beetem ruled the ballot title written by then-Secretary of State Jay Ashcroft for the abortion rights amendment was “problematic” and rewrote the language himself.
In November, Missouri became the first state to overturn an abortion ban after voters narrowly approved an amendment guaranteeing the constitutional right to abortion up to the point of fetal viability.
But a series of laws regulating abortion providers prevented Missourians from immediately accessing abortion following the election.
Planned Parenthood and the ACLU of Missouri sued the state over these regulations, and in the coming months a Jackson County Judge Jerri Zhang found some of the regulations to be unconstitutional under the new abortion rights law.
In issuing two preliminary injunctions, Zhang blocked state laws that requiring a 72-hour waiting period for abortions, requiring physicians performing abortions have admitting privileges at a local hospital, and requiring a licensing requirement for abortion clinics.
This judge used a preliminary injunction to temporarily strike down these abortion provider regulations, opening up access to in-clinic abortions in Missouri beginning in February.
In April, the Republican supermajority in the legislature passed the new law giving the attorney general the power to appeal the preliminary injunction. Then-attorney general Andrew Bailey immediately put the new law to use by appealing the abortion preliminary injunction.
That case was heard in mid-September in the Missouri Western District Court of Appeals in Kansas City. That higher court did not make a decision ahead of Green’s ruling.
This story was originally published by the Missouri Independent.
