The Missouri Supreme Court Building in Jefferson City (Jason Hancock/Missouri Independent).
A legal showdown between a pair of Republican statewide elected officials found its way to the Missouri Supreme Court on Tuesday, as the judges heard arguments over whether a behind-the-scenes push to increase the cost of an abortion-rights initiative petition was illegal.
Attorney General Andrew Bailey is defending his unprecedented decision to reject a fiscal summary crafted by state Auditor Scott Fitzpatrick that concluded the proposed initiative petition would have no significant impact on state funds.
Bailey wanted the fiscal note to say the proposed amendment would cost the state billions of dollars.
The Missouri ACLU filed a lawsuit, arguing that Bailey lacked legal authority to refuse to certify Fizpatrick’s fiscal estimate and was instead simply trying to derail the initiative petition’s chances of getting on the 2024 ballot.
A Cole County judge last month agreed, ordering Bailey to sign off on the auditor’s work.
Bailey appealed, and on Tuesday a packed Jefferson City courtroom heard Assistant Attorney General Jason Lewis argue that the court’s June ruling needlessly restricted Bailey’s authority.
The attorney general is tasked with approving the legal content and form of the fiscal summary of a proposed initiative petition. The Cole County ruling would reduce the attorney general’s role in the initiative petition process to a “word counter,” Lewis argued, leaving the office only reviewing fiscal notes to ensure they are the proper length.
Robert Tillman, deputy general counsel for the auditor’s office, said this was the first time an attorney general has attempted to reject the auditor’s work in the fiscal note process.
The attorney general has only a “perfunctory, ministerial role in the fiscal note process for initiative petitions,” Tillman argued. Bailey believes he can substitute his judgment for the auditor’s, he said, but there is nothing in state law giving him that authority.
To bolster that point, Tillman pointed out that the General Assembly stripped the attorney general’s statutory authority to draft the fiscal note summary for a proposed initiative more than 40 years ago.
The attorney general’s interpretation of state law “requires legal gymnastics,” Tillman said, and leads to “preposterous results.”
Anthony Rothert, attorney for the Missouri ACLU, noted that the auditor reviewed Bailey’s suggested changes, including circling back to state agencies seeking any evidence to back the attorney general’s claims.
“There was no new evidence,” he said.
The attorney general is trying to hold hostage and “potentially kill,” an initiative petition he opposes,” Rothert said. Bailey’s actions, he said, are a “direct threat to direct democracy.”
“For more than a century,” Rothert said, “this court has been a guardian of direct democracy.”
The initiative petition 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.
As part of the initiative petition process, the state auditor is required to create a fiscal note and a fiscal note summary that states “the measure’s estimated cost or savings, if any, to state or local governmental entities.”
After consulting 60 state and local agencies, including the attorney general’s office, Fitzpatrick concluded the state would face “no costs or savings” as a result of the proposed constitutional amendment.
Emails obtained by The Independent show Bailey refused to give what has traditionally been considered perfunctory approval of the fiscal note. Instead, he insisted the auditor increase the estimate to say the amendment would cost the state billions of dollars.
Bailey contends that both the Department of Social Services, which oversees the state’s Medicaid program, and the Department of Revenue were incorrect when they told the auditor’s office that there would be no cost to the state if the initiative petition passes.
The attorney general believes — and several opponents of the abortion-rights petition argued in letters to Fitzpatrick — that the proposed amendment could put federal Medicaid money at risk, costing the state at least $12 billion annually. He also contends the fiscal summary should reflect possible loss of tax revenue as “aborting unborn Missourians will have a deleterious impact on the future tax base.”
Fitzpatrick said that while he vehemently opposes the proposed initiative petition, the projected cost estimate being pushed by Bailey is not based in reality. To alter his fiscal summary to include Bailey’s “inaccurate information.” Fitzpatrick wrote to the attorney general, would “violate my duty as State Auditor to produce an accurate fiscal note summary.”
Because of the impasse, Secretary of State Jay Ashcroft has not completed his work on the summary, and thus, supporters cannot legally begin collecting signatures to place the issue on the ballot.
The court did not take any action on Tuesday.
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