Citing appeal, judge declines to order Missouri AG to comply with order on abortion initiative

On Monday, Beetem said he agreed with Bailey that the appeal filed within 24 hours of the original order resulted in an automatic stay of his ruling. He added that the schedule set by the Missouri Supreme Court for an appeal of that order will bring a quick resolution.

That final decision may not come as fast as the ACLU of Missouri would like, Beetem noted, but it is speedy in court terms. The Supreme Court set oral arguments for July 18, and Beetem said he would expect a decision by the end of July.

“So it’s still a question that every day of delay prejudices the petitioners,” Beetem said. “But I don’t know that we could make it move any faster.”

The focus of the case is 11 versions of a proposed initiative petition seeking to roll back Missouri’s ban on abortion submitted in March to Secretary of State Jay Ashcroft’s office. 

Ashcroft sent the submissions to the attorney general and to the state auditor’s office for review as required by law.

For every initiative, the attorney general reviews the petition to make sure it meets the legal requirements for circulation while the auditor works to summarize the cost. The auditor’s estimate is referred to the attorney general to make sure it, too, meets the legal requirements – a discussion of the projected cost in 50 words or less that are neutral on the merits of the proposal.

That process, supposed to take no more than 56 days, has now doubled that amount because Bailey refused to accept Fitzpatrick’s fiscal summary.

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.

The auditor cited several state agencies in concluding the state would face “no costs or savings” as a result of the proposed constitutional amendment. The summary did say 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 significant loss in state revenue. 

Bailey, Beetem noted in his court order, wanted Fitzpatrick to quote one opponent who estimated the cost to the state at $6.9 trillion.

In court on Monday, ACLU of Missouri attorney Tori Schafersaid Beetem should require Bailey to certify Ftizpatrick’s original fiscal summary. If Bailey succeeds in the Supreme Court, he can ask for an order directing it to be sent back, she said.

Bailey should not have assumed filing the appeal resulted in an automatic stay, she said.

“He has concluded that he can ignore this court order because he filed a notice of appeal,” Schafer said. “The mere filing of a notice of appeal, however, does not excuse him from this court’s directive.”

In response, Assistant Attorney General Jason Lewis said the mandatory nature of Beetem’s order generated the automatic stay when the notice of appeal was filed.

“This court order operates as an injunction and therefore we think it has been automatically stayed,” Lewis said. “And again, that is why the attorney general acted so swiftly to file a notice of appeal with the Missouri Supreme Court within 24 hours.”

Under regular court operating rules, the judgment from Beetem would not have been final for 30 days. As he discussed his reasons for recognizing the automatic stay, Beetem said he would have granted a stay if requested and that could have meant Bailey could wait until late July before filing the notice of appeal.

And, Beetem said, the actual briefings for that appeal and the argument date would have been pushed off into the fall if Bailey had taken all the time allowed.

“It appears to the court that things are moving in the proper direction,” Beetem said.