Attorney General Andrew Bailey’s attempt to increase the cost of an abortion-rights initiative petition was unprecedented and illegal, lawyers for the Missouri ACLU and state auditor’s office argued Wednesday in Cole County Court.
”No attorney general has ever attempted to exercise this level of discretion,” said Robert Tillman, deputy general counsel for Auditor Scott Fitzpatrick.
Meanwhile, the attorney general’s office contends it was simply exercising its authority under state law when it refused to sign off on a fiscal note summary crafted by the auditor that said the abortion-rights initiative petition would have no cost to state or local government.
“It is far from clearly established that the attorney was required to simply rubber stamp the auditor’s fiscal note summary,” said Jason Lewis, chief counsel for the attorney general.
At the heart of Wednesday’s arguments in Cole County Circuit Court are 11 initiative petitions filed with the secretary of state’s office in March seeking to roll back Missouri’s abortion ban by enshrining reproductive rights in the state constitution.
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.”
Emails obtained by The Independent show Fitzpatrick’s office completed its work on the amendment’s cost estimate, but Bailey refused to give what has traditionally been considered perfunctory approval.
Bailey insisted the auditor increase the fiscal estimate to say the amendment would cost the state billions of dollars. Fitzpatrick said that would be a lie and refused.
Because of the impasse, Secretary of State Jay Ashcroft says he can’t complete his work on the summary, and thus, supporters cannot begin collecting signatures to place the issue on the 2024 ballot.
On Wednesday, Judge Jon Beetem agreed with Ashcroft, dismissing him from the lawsuit since his office is unable to perform its duties until the fiscal note issue is resolved.
“He doesn’t have to do anything until something hits his desk,” Beetem told attorneys in court Wednesday.
Tony Rothert, attorney for the Missouri ACLU, believes Beetem should order the attorney general to certify the fiscal note so that Ashcroft can then finalize the ballot summary and signature collection can begin.
The ballot summary was supposed to be completed May 1, Rothert noted, and further delay makes it increasingly less likely the proposal will make it to the 2024 ballot.
“Less time to collect signatures makes the cost go up and feasibility go down,” Rothert said.
If the judge agrees with the attorney general that he has veto power over the auditor’s work, he should order Fitzpatrick to acquiesce to Bailey’s demand so the process can move forward.
“If we are wrong, then the auditor should be ordered to prepare a fiscal note summary according to the attorney general’s specifications, and we can sue him later,” Rothert said. “But as it is now, our client is left in limbo as the auditor and attorney general look at each other.”
Bailey rejected the fiscal note because he believes 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.
He demanded Fitzpatrick change the fiscal note to declare that the amendment could cost the state at least $12.5 billion in lost Medicaid funding, as well tens of billions in possible lost tax revenue because “aborting unborn Missourians will have a deleterious impact on the future tax base.”
Tillman countered that under state law, the attorney general has only a “perfunctory, ministerial role in the fiscal note process for initiative petitions.”
Bailey has no authority to asses the fiscal impact of initiative petitions, Tillman argued, and no authority to substitute his discretion for that of the state auditor.
To bolster that point, Tillman noted the General Assembly eliminated the attorney general’s statutory authority to draft the fiscal note summary for a proposed initiative more than 40 years ago.
“If the attorney general has veto power over the auditor’s fiscal determination,” Tillman said, “then the state auditor’s role in drafting a fiscal note summary is rendered meaningless.”
Both Tillman and Rothert noted that state law allows any citizen of Missouri to file a lawsuit challenging a fiscal note summary. That includes, they said, the attorney general.
Beetem asked Lewis near the end of the hearing whether Bailey would have the authority to challenge the fiscal note in court if he deemed it insufficient as opposed to blocking it in the review process.
“We think the attorney general would have the authority to do so as a Missouri citizen,” Lewis replied.
The judge gave both sides the end of next week to submit proposed orders before he issues his ruling.
