Missouri attorney general seeks to block subpoena in abortion amendment lawsuit

By Jason Hancock

Missouri Independent

Missouri Attorney General Andrew Bailey wants a Cole County judge to block a subpoena seeking records about how he came up with a $21 million cost estimate for a proposed abortion-rights initiative petition.

(Photo- Missouri Attorney General Andrew Bailey speaks to reporters outside the Western District Court of Appeals building in Kansas City while Secretary of State Jay Ashcroft waits for his turn the microphones. Bailey and Ashcroft had just attended arguments over the abortion initiative ballot titles rewritten by a Cole County judge- Rudi Keller/Missouri Independent).

Republican political operative Jamie Corley filed an initiative petition earlier this year that seeks to amend the state constitution to add rape and incest exceptions to Missouri’s abortion ban and legalize the procedure through the first 12 weeks of pregnancy, among other provisions.

 

Bailey argued in October that if the amendment were to be approved by voters next year, he would refuse to defend it and would have to hire outside counsel — which he determined would cost $21 million.

Corley filed a lawsuit challenging Bailey’s estimate, along with the ballot summary written by Secretary of State Jay Ashcroft. As part of that litigation, Corley’s attorneys issued a subpoena seeking records from the attorney general’s office explaining the cost estimate and the process for hiring outside counsel.

In a filing this week with the court, the attorney general moved to quash the subpoena and asked the judge “for a protective order as to this request.”

“The attorney general has told the public that it’s going to cost taxpayers $21 million if this measure passes,” said Chuck Hatfield, the attorney representing Corley. “And I think we’re entitled to understand how he got to that number. Basically, the attorney general has said he will not do the job we elected him to do and the taxpayers are going to have to hire other lawyers to do it.”

All the records in question should be public and readily available, Hatfield said. They would be obtainable through the Missouri Sunshine Law, but Bailey’s office has such a massive backlog of requests that it is unlikely any records would be produced until late spring.

Initiative petitions hoping to get on the 2024 ballot face a May deadline to collect the required number of signatures from across the state.

Bailey’s office confirmed earlier this month that it has almost finished work on requests filed to the attorney general’s office in 2022.

“We did not put in a Sunshine request because our understanding, from publicly available reporting, is that it would take several months,” Hatfield said. “And with a subpoena, we should be able to get documents within 45 days.”

A spokeswoman for Bailey declined comment.

The attorney general’s office is not a defendant in Corley’s lawsuit. Though Bailey’s cost estimate is part of the fiscal note, it was the auditor’s office that decided to include it in the summary that could appear on the ballot.

In arguing for the $21 million cost estimate, Bailey said in October that if Corley’s amendment was approved by voters and resulted in any litigation, his office would likely have to hire conflict counsel to represent the state. That’s because, Bailey said, he has “staked out a position strongly in favor of protecting the unborn, creating a positional conflict that is untenable for the Attorney General and would necessarily generate greater legal costs.”

Bailey seemed to back off that argument last month, when he told reporters he is “committed to enforcing the law as written.”

 

“I’m not a lawmaker. I’m in the executive branch,” he said. “We’ve (got a) documented history of defending state statute and state constitutional provisions, and we’ll continue to do that.”

It’s the second time Bailey has sought to inflate the cost of an abortion-rights initiative petition this year.

In July, the state Supreme Court ruled Bailey overstepped his legal authority when he refused to sign off on a fiscal note produced by the auditor’s office unless it was reworked to say legalizing abortion would cost the state billions.