Attorney General Andrew Bailey must approve the fiscal note summary completed by the state auditor in connection with an effort to put an initiative to legalize abortion on the ballot next year, the Missouri Supreme Court ruled on July 20.

The Supreme Court affirmed a Cole County Circuit Court decision, finding that “the Attorney General has a purely clerical and ministerial duty to approve the summary” when the summary satisfied statutory requirements, which the court held it did.

Bailey had claimed that the legal content of the fiscal note and fiscal note summary was not satisfactory, as State Auditor Scott Fitzpatrick had relied on a small pool of inadequate responses from local and state entities that underestimated the cost of the proposed measures. But that only concerns the fiscal note, which the attorney general has no authority to challenge, the court held. Additionally, that argument concerns the note’s substance, not its legal content.

“But section 116.175.1 makes clear that the substantive responsibility for assessing the fiscal impact of a measure belongs solely to the Auditor, and only the “legal content and form” of that assessment are to be reviewed by the Attorney General,” Justice Paul C. Wilson wrote in the majority opinion.

The attorney general’s refusal to approve the summary meant proponents of the initiative could not begin collecting signatures to get the issue on the ballot. The ACLU of Missouri, representing petitioner Dr. Anna Fitz-James in the suit against the attorney general, state auditor and secretary of state, argued that Bailey’s refusal and eventual appeal were all in an effort to take away time for proponents to collect those required signatures.

The court noted that it has often repeated the importance of the right to initiative enshrined in the Missouri Constitution, for instance finding in United Lab Comm. of Mo. v. Kirkpatrick that voters’ ability to get significant issues before other voters “should not be thwarted in preference for technical formalities.”

“If technical formalities cannot stand in the way, a failure to perform a clear and unequivocal duty must not be allowed to do so either. If the Attorney General had complied with his duty to approve the Auditor’s fiscal note summaries in the time prescribed by section 20 116.175.4, the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago,” Wilson wrote.

The case is State of Missouri ex rel. Dr. Anna Fitz-James v. Andrew Bailey, in His Official Capacity, Scott Fitzpatrick, et al., SC100132.

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