Missouri Attorney General Andrew Bailey speaks Jan. 20 to the Missouri chapter of the Federalist Society on the Missouri House of Representatives chamber (Annelise Hanshaw/Missouri Independent).
Complying with an order to certify the fiscal summary on 11 abortion petitions would be an “affirmative irreversible action” that he is entitled to refuse until an appeal is heard, Attorney General Andrew Bailey argued in a court filing Wednesday.
Cole County Circuit Judge Jon Beetem ordered Bailey on Tuesday to issue the certification to State Auditor Scott Fitzpatrick “within 24 hours.” That time limit passed at 9 a.m. Wednesday with no action except Bailey filing an appeal with the Missouri Supreme Court.
The ACLU of Missouri, representing Anna Fitz-James, a St. Louis doctor who submitted the petitions, then filed a motion asking Beetem to order Bailey to comply. The ACLU motion argued that the attorney general’s office is not among parties entitled to an automatic stay when a judgment is appealed.
That is wrong, Bailey’s office wrote in a response brief filed Wednesday afternoon. While Beetem issued a writ of mandamus, he put in a footnote in his decision stating that if that form of an order was not available, he would have issued a declaratory judgment and permanent injunction.
That footnote, Bailey’s office argues in the brief signed by assistant attorney general Samuel Freedlund, means that a 1969 case stating appeals of “an order in the form of a mandatory injunction” results in an automatic stay of the order.
“The reasons behind an automatic stay on appeal of a judgment commanding a litigant to take any affirmative action action are clear,” the brief states.
First, it preserves the current situation and avoids confusion if Beetem’s ruling is reversed, it states.
“Furthermore, the automatic stay prevents an appeal from being rendered moot by a judicial decision compelling the disputed (and, oftentimes, irreversible) affirmative action prior to any appellate review,” Freedlund wrote.
Beetem has not scheduled a hearing on the ACLU’s motion to enforce his order.
Jefferson City attorney Chuck Hatfield, who worked in the attorney general’s office under Democrat Jay Nixon, said Bailey’s actions, first refusing to certify the fiscal note summary and now refusing to comply with the court order, are unprecedented in his experience.
“This has never happened as far as I can tell,” Hatfield said. “This has never happened where an attorney general has refused to certify a fiscal note because he disagrees with the substance of the note.
“I don’t think it has ever happened that an attorney general has not obeyed a direct court order like this.”
When the appeal was filed to the Supreme Court, he said, Bailey’s office should have asked for a stay of Beetem’s order.
“I think they put themselves at risk of being in contempt,” Hatfield said.
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In filings at the Supreme Court, the parties are disputing how fast the case should move ahead.
But the court must decide if it wants the case at all.
The Supreme Court could send it to the Western District Court of Appeals instead.
In his scheduling request, ACLU of Missouri attorney Tony Rothert asked for all briefs to be filed by July 3.
“The Attorney General’s shenanigans have already robbed (Fitz-James) of nearly sixty days from the period in which to challenge that ballot title and collect sufficient signatures,” Rothert wrote.
Bailey is asking the court to give him a deadline of July 5 for the appeal brief, with all filings in by July 19. That is faster than the court’s standard schedule and will leave plenty of time for signature collection, Freedlund wrote.
Fitz-James said in a June 6 deposition that nothing has been done to initiate a signature campaign, Freedlund wrote.
The quicker schedule proposed by Rothert “is unnecessary because there is an independent, non-legal barrier to her collecting signatures: She is not prepared, as a matter of planning and resources, to do so.”
The Supreme Court has not ruled on the scheduling issues.
Bailey, a Republican appointed in January who is facing a tough primary next year in his first time before voters, refused to accept the fiscal note summary of the petitions prepared by the auditor’s office. Anti-abortion groups have heavy sway in GOP primaries.
Bailey has involved his office in other abortion fights. He has filed briefs in other states in support of anti-abortion laws and joined in federal lawsuits to stop abortions in the Department of Veterans Affairs medical facilities and an FDA rule allowing abortion-inducing medications to be mailed to patients.
On Thursday, he issued a news release encouraging donations to a national fund for agencies operating centers that give anti-abortion counseling to pregnant women.
Polls show the broader electorate in Missouri supports legal abortion, albeit with some restrictions. And it is that broader support that backers of the abortion initiatives are hoping to replicate the stunning landslide victory for abortion rights in Kansas.
Expecting the initiative campaign, GOP leaders tried and failed in the legislature to make it more difficult to put initiatives on the ballot and raise the majority needed for passage.
Backed by a political action committee called Missourians for Constitutional Freedom, the proposals would amend the constitution to 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 patients seeking reproductive-related care and medical providers would be outlawed.
But there are key differences on a range of topics among the 11 proposals.
Each version says there must be a “compelling governmental interest” for abortion restrictions to be put in place. But while some allow the legislature to regulate abortion after “fetal viability,” others draw the line at 24 weeks of gestation.
Some versions make it clear the state can enact parental consent laws for minors seeking abortions. Others leave the topic out entirely.
The difference between Bailey and Fitzpatrick is over how large the fiscal impact should be.
Fitzpatrick wrote a summary stating that it would have no known impact on state revenues and that one local government had estimated lost future revenue at $51,000.
Bailey wanted Fitzpatrick to write that the initiative endangered the state’s Medicaid funding, Beetem noted in his ruling, and that it would reduce future revenue and it should cite an opponent’s estimate of the cost at $6.9 trillion. Fitzpatrick has been elected state representative, state treasurer and now auditor with the support of anti-abortion groups and said in a statement after Beetem’s ruling that he remains opposed to abortion.
“However,” he said, “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.”
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