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Delay in initiative petition on abortion gets Missouri Supreme Court hearing

The entrance to the Missouri Supreme Court on Tuesday, Jan. 3, 2023, in Jefferson City.
Brian Munoz
St. Louis Public Radio
Lawyers for the attorney general and auditor's offices argued Tuesday before the Missouri Supreme Court, pictured in January, over the amount of power each office has on the fiscal note that estimates how much a proposed constitutional amendment legalizing abortion will impact the state financially.

The state’s highest court heard arguments Tuesday about how much authority state offices have over the initiative ballot petition process.

Attorney General Andrew Bailey and Auditor Scott Fitzpatrick are at odds about the amount of power each has over a fiscal note that estimates how much a proposed amendment adding abortion rights to Missouri’s constitution would cost the state.

Bailey has not given his approval to Fitzpatrick’s fiscal summary of the proposed amendment, which estimated minimal cost to the state. Instead, the attorney general insisted that the auditor change the fiscal note and increase the projected amount the amendment would cost the state by billions of dollars. Fitzpatrick refused, with attorneys for his office arguing Bailey’s role is a formality.

This stalemate between the two offices has resulted in a lawsuit by the proponents of the amendment, saying the continued delays are costing them time needed to collect the necessary signatures.

Last month, Cole County Circuit Judge Jon Beetem ruled Bailey did not have the authority to question the estimated cost of the proposed amendment by Fitzpatrick.

Beetem also ruled that Bailey must certify the fiscal note within 24 hours. That certification did not occur since Bailey appealed the ruling.

Assistant Attorney General Jason Lewis said Tuesday the circuit court’s ruling was an “impermissibly narrow reading.”

“A plain reading of that statute permits the attorney general to do a threshold review of legal content and form to determine whether a fiscal note summary is argumentative or prejudicial on its face,” Lewis said.

Lewis also said the attorney general’s office believes the auditor’s office could have done more.

“There's certainly a floor in which the auditor can engage in a review of submissions,” Lewis said. “There's also a ceiling. There's a lot of room in between, and the attorney general pointed out the several reasons why the state auditor did not even exercise his minimum obligations.”

Robert Tillman, representing the auditor, argued the attorney general only has a perfunctory role in the fiscal note process.

“There is no authority permitting the attorney general to substitute his judgment for the auditors and all law points to the auditor, being the official, having sole discretion regarding the fiscal note summary’s fiscal estimate,” Tillman said.

Tillman also said the attorney general’s interpretation requires “performing legal gymnastics and reading language into the statute that is simply not there.”

Petitioners filed that proposed abortion amendment in March and sued the offices of the attorney general, auditor and secretary of state over delays in finalizing the summary of the initiative petition.

Before any signatures can be collected, the summary of the proposed amendment must be completed by the secretary of state’s office.

Secretary of State Jay Ashcroft said he cannot complete the summary because of the impasse between Bailey and Fitzpatrick.

In speaking for the plaintiffs of the original court case, attorney Anthony Rothert with the ACLU of Missouri said that Fitzpatrick fulfilled his obligations and that Bailey’s actions represent “the most serious threat to direct democracy” that has happened in Missouri.

“It's not an understatement to say that he's trying to carry out a coup against the people of Missouri, taking away their authority to change the law by initiative by using the statutes that are there to stall, stall and stall,” Rothert said.

Speaking after the hearing, Luz María Henríquez, executive director of the ACLU of Missouri, said with this continued delay, nearly three months of potential signature collecting have been taken away.

“The obstruction of the people's right to an initiative will make a signature gathering campaign more challenging and more difficult, but we will not bow to the attorney general's abusive tactics,” Henríquez said.

The Supreme Court did not issue a ruling on Tuesday.

Sarah Kellogg is a Missouri Statehouse and Politics Reporter for St. Louis Public Radio and other public radio stations across the state.