(Missouri Independent) – Missouri Attorney General Andrew Bailey did not deliver his certification of the fiscal note summary on 11 abortion rights petitions within the 24 hours ordered Tuesday by Judge Jon Beetem.
Instead, Bailey filed a notice of appeal with Beetem’s court that he wanted to take the case to the Missouri Supreme Court. As of early Wednesday, however, that court had not issued any decision suspending or staying the Beetem’s 24-hour order.
“It appears he is attempting to use an automatic stay through the appeals process,” said Tom Bastian, spokesman for the ACLU of Missouri, which represented petitioner Anna Fitz-James in the case before Beetem. “We filed a motion to enforce and that goes back to Judge Beetem.”
In the motion, ACLU attorneys argue that because Bailey’s office is not among the types of parties granted an automatic stay after filing an appeal, he must ask for one.
“The Attorney General cannot evade this court’s order simply by filing a notice of appeal,” the attorneys wrote.
Beetem issued a writ of mandamus shortly before 9 a.m. Tuesday for Bailey “within 24 hours of this order to approve forthwith the legal content and form of the fiscal note summaries” on 11 initiative proposals filed in early March by Fitz-James.
The proposed constitutional amendments would declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.”
Under state law, after a proposed initiative is filed with the Secretary of State’s office, it is sent to the attorney general and the auditor. The attorney general must certify that the petition is in the form required by law and the auditor estimates the fiscal impact. After the auditor is done, the analysis is sent to the attorney general to determine if it, too, meets the legal requirements.
The process broke down when Bailey refused to accept the cost estimate prepared by Auditor Scott Fitzpatrick and refused to certify it. Fitz-James and the ACLU of Missouri sued and on Tuesday Beetem ruled Bailey had an “an absolute absence of authority” to dispute the contents of Fitzpatrick’s estimate if it met the legal form.
Bailey had a ministerial duty that allowed no discretion in the matter, Beetem ruled.
Trevor Fox, spokesman for Fitzpatrick, said the office did not receive anything by the deadline.
“We have not received certification nor have we received any notice of a stay,” Fox wrote in an email.
JoDonn Chaney, communications director for Secretary of State Jay Ashcroft, said that the office had also not received any documentation that Bailey had complied with Beetem’s order.
Bailey’s office did not respond immediately Wednesday morning to a request for comment.
In a five-page filing in Beetem’s court, Bailey wrote that he was challenging the validity of seven statutes governing the form and procedures for initiative petition submission and review.
“As represented in respondent’s petition and the Circuit Court’s Judgment, the attorney general’s appeal inherently involves questions surrounding the obligations imposed on executive branch officials by various election statutes and the relationship between those obligations and different provisions of the Missouri Constitution,” Bailey’s filing states.
In his ruling, Beetem rejected the constitutional challenge.
Bailey is responsible for the impasse on certification, Beetem wrote. He refused “to disrupt the statutory scheme set forth in Chapter 116, RSMo, which has served the citizens of Missouri well by providing fiscal estimates for every ballot measure for over twenty-five years. The court finds a discussion of the constitutionality of those statutes is unnecessary.”
Bailey’s unprecedented refusal to certify the auditor’s fiscal note summary has meant lengthy delays for backers of the initiative. It is part of a review process that by law should last no more than 56 before an initiative is ready for circulation. As of Wednesday, it has been 105 days since Fitz-James submitted petitions for review.
To make the ballot, a constitutional amendment must have at least 171,592 signatures from registered voters equal to 8% of the 2020 vote for governor in six of the state’s eight congressional districts. The minimum number is 171,592, using the districts with the lowest turnout.
“Every day the time for signature collection is delayed, the cost of gathering enough signatures to get a measure before voters increase and the feasibility decreases,” ACLU attorneys wrote in the motion for execution of the judgment.
The fiscal note summary was prepared by the auditor, Beetem wrote, after sending notices to 60 state and local governments and accepting numerous comments from opponents and supporters. In it, Fitzpatrick wrote that the state would face “no costs or savings” as a result of the proposed constitutional amendment but that one local government entity estimates losing at least $51,000 in reduced tax revenues and that opponents of the proposal contend it could lead to a significant loss in state revenue.
Bailey wanted the summary to say the proposal endangers the state’s Medicaid funding and, combined with the loss of future tax revenue could put the cost at $6.9 trillion, Beetem wrote in his ruling.
(Photo courtesy Missouri Attorney General’s Office)
