(Missouri Independent) – The Missouri Supreme Court will hear arguments on July 18 to decide whether the attorney general can override the state auditor and demand changes in the estimated cost of initiative petitions.
On Tuesday, Cole County Circuit Judge Jon Beetem gave Attorney General Andrew Bailey 24 hours to certify the fiscal note summary prepared by State Auditor Scott Fitzpatrick for 11 abortion rights petitions. Instead of complying with the order, Bailey appealed to the high court.
The appeal has generated additional disputes, beyond whether Beetem was correct when he wrote Bailey had “an absolute absence of authority” to refuse to certify the fiscal summary.
The ACLU of Missouri, representing Anna Fitz-James, the St. Louis doctor who submitted the petitions, is asking Beetem to order Bailey to comply with his Tuesday decision. The ACLU has asked for a Monday hearing on its motion.
And Fitzpatrick’s lawyers, after reading in a court submission from Bailey that the auditor had no role in the Supreme Court case, sent the court a filing that declared he wanted to participate.
Fitzpatrick has maintained throughout the dispute that Bailey cannot order him to change the contents of the fiscal note.
“Without intervention, the auditor would be deprived of the opportunity to defend his authority to draft fiscal notes and fiscal note summaries without undue and improper interference by the attorney general,” the auditor’s in-house counsel, Rob Tillman wrote in the Supreme Court filing.
The court on Friday granted Fitzpatrick’s motion to intervene and set the schedule for arguments on the timeline suggested by Bailey.
The genesis of the case is when Fitz-James in March submitted 11 versions of a proposed initiative petition seeking to roll back Missouri’s ban on abortion to Secretary of State Jay Ashcroft’s office.
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.
The submission started a review process that, by law, can take up to 56 days. Bailey reviews it to make sure it fits the legal form and certifies that to Ashcroft.
The auditor’s only job is to seek input on the proposal’s cost to state and local governments and summarize it in less than 50 words. Then the attorney general reviews it, and Beetem said in his decision that Bailey’s job is to make sure he stays within that limit and focuses on finances and no more.
In a normal process, Ashcroft would receive the certifications, write a ballot title and the petitioner could begin gathering signatures.
By first demanding changes to Fitzpatrick’s original estimate, and then refusing to certify it when the auditor declined to make changes, Bailey has effectively stalled the abortion initiative before signature-gathering can begin.
Bailey had “no authority to substitute his own judgment for that of the auditor” when reviewing the estimate, Beetem wrote.
Bailey, a Republican appointed to his post in January, disputed the fiscal estimate by arguing that the measures would endanger Missouri’s Medicaid program and hurt future revenues. Fitzpatrick, who has campaigned as an abortion opponent throughout his political career, relied on reports from state agencies and local governments. He wrote that it would have no known impact on state revenue and that one county had estimated the future revenue loss 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.
In the court filing proposing a schedule, Bailey had sought to eliminate Fitzpatrick from the appeal. Fitz-James sued Ashcroft, Fitzpatrick, and Bailey. Ashcroft was dismissed from the case and Fitzpatrick was found to have complied with the law.
Assistant attorney general Samuel Freedlund said in his scheduling argument that because the auditor had prevailed in Cole County, that office did not have a role in the Supreme Court case.
“Absent a cross-appeal by (Fitz-James)…the auditor will be neither an appellant nor respondent in this action,” Freedlund wrote.
In the motion seeking to intervene, Tillman wrote that the auditor cannot count on Fitz-James’ attorneys to fully represent his interest in protecting his statutory authority.
“Every party that suffers a legal loss would prefer to cast aside and exclude their adversary from appellate litigation to deprive the court of a defense of the ruling under appeal,” Tillman wrote. “Unfortunately for the attorney general, that is not how the law works.”
(Photo by Tessa Weinberg-Missouri Independent)
