Kelly v. Fitzpatrick

• Docket Number: WD86594
• Decision Date: 31 October 2023
• Parties: HANNAH SUE KELLY, KATHLEEN ANNE FORCK, and MARY ELIZABETH ANNE COLEMAN, Appellants, v. SCOTT FITZPATRICK, MISSOURI STATE AUDITOR, in his official capacity, JOHN R. ASHCROFT, MISSOURI SECRETARY OF STATE, in his official capacity, and ANNA FITZ-JAMES, Respondents.
• Court: Missouri Court of Appeals

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HANNAH SUE KELLY, KATHLEEN ANNE FORCK, and MARY ELIZABETH ANNE COLEMAN, Appellants, v. SCOTT FITZPATRICK, MISSOURI STATE AUDITOR, in his official capacity, JOHN R. ASHCROFT, MISSOURI SECRETARY OF STATE, in his official capacity, and ANNA FITZ-JAMES, Respondents.

No. WD86594

Court of Appeals of Missouri, Western District

October 31, 2023

Appeal from the Circuit Court of Cole County The Honorable Jon E Beetem, Judge

Before Special Division: Alok Ahuja, P.J., and Mark D. Pfeiffer and Karen King Mitchell, JJ.

Alok Ahuja, Judge

Dr Anna Fitz-James submitted six proposed initiative petitions to the Missouri Secretary of State. Although worded differently, each of the six initiatives would amend the Missouri Constitution to prohibit the government from denying or infringing "a person's fundamental right to reproductive freedom." Missouri State Auditor Scott Fitzpatrick prepared fiscal notes and fiscal note summaries to estimate the costs or savings to state and local government entities if the initiatives were adopted. Hannah Sue Kelly, Kathleen Anne Forck, and Mary Elizabeth Anne Coleman (collectively, "Kelly") filed suit in the Circuit Court of Cole County, challenging the sufficiency and fairness of the Auditor's fiscal notes and fiscal note summaries. Following a bench trial on stipulated facts, the circuit court found the Auditor's fiscal notes and fiscal note summaries to be fair and sufficient. Kelly appeals. We affirm.

Factual Background

Dr Fitz-James submitted six proposed initiative petitions to the Secretary of State in March 2023. Each petition proposes to add a new § 36 to Article I of the Missouri Constitution, to be known as "The Right to Reproductive Freedom Initiative." Section 2 of each petition provides:

The Government shall not deny or infringe upon a person's fundamental right to reproductive freedom, which is the right to make and carry out decisions about all matters relating to reproductive health care, including but not limited to prenatal care, childbirth, postpartum care, birth control abortion care, miscarriage care, and respectful birthing conditions.

In § 3, each petition provides that "[t]he right to reproductive freedom shall not be denied, interfered with delayed, or otherwise restricted unless the Government demonstrates that such action is justified by a compelling governmental interest achieved by the least restrictive means." A governmental interest will only be considered "compelling" if it has the purpose and effect "of improving or maintaining the health of a person seeking care, is consistent with widely accepted clinical standards of practice and evidence-based medicine, and does not infringe on that person's autonomous decision-making." The petitions each prohibit discrimination against, or punishment or prosecution of, any person for exercising their right to reproductive freedom, or for assisting another person in exercising that right.

Although the core provisions of each petition are similar, they vary in significant respects. Some of Dr. Fitz-James' proposed initiative petitions do not expressly address governmental regulation of abortions. Certain proposed petitions expressly permit abortion regulation after a fetus has reached twenty-four weeks' gestational age, while other versions permit governmental regulation after fetal viability (in both cases, with exceptions where an abortion is necessary to protect the life or health of the mother, or involves a nonviable fetus). Certain of the petitions would expressly permit the legislature to enact laws requiring parental consent before a minor can obtain an abortion (with stated exceptions to the consent requirement). Finally, certain versions of the petitions explicitly provide that "[n]othing in this Section requires government funding of abortion procedures."

The terms of Dr. Fitz-James petitions is described in greater detail in our opinion in Fitz-James v. Ashcroft, No. WD86595, which is also being handed down today; the full text of each petition is included in an appendix to the Fitz-James opinion.

The Missouri Supreme Court's opinion in State ex rel. Fitz-James v. Bailey, 670 S.W.3d 1 (Mo. 2023), describes the process by which fiscal notes and fiscal note summaries were prepared for Dr. Fitz-James' petitions:

The Secretary [of State] posted the text of the initiatives on his website, as he was required to do by section 116.332,^[1] and sent a copy of each proposed petition to the Attorney General and the Auditor....

Upon receiving the proposed petitions from the Secretary, the Auditor solicited input from 60 state and local governmental entities regarding estimated costs or savings, if any, of each proposed initiative. § 116.175.1.² In addition to these solicited submissions, the Auditor accepted and recorded unsolicited responses received from any other governmental entity, proponents, opponents, and members of the public.

² The Auditor solicited input from the Attorney General's Office; the Governor's office; the Missouri Senate; the Missouri House of Representatives; the Secretary of State's office; the Office of the State Public Defender; the State Treasurer's Office; the Office of Administration; the Office of State Courts Administrator; 16 different departments of state government; 12 counties; 14 cities; five school districts; and four colleges and universities.

The Department of Social Services, Department of Mental Health, and Department of Health and Senior Services indicated they anticipated no fiscal impact, other than unknown impact related to federal regulations. No other state department, nor the Attorney General, provided a response indicating any of the initiatives would jeopardize the state's federal Medicaid funding. The only county to report an anticipated fiscal impact was Greene County, which estimated a $51,000 fiscal loss. All other responsive counties reported no anticipated fiscal impact. Opponents of the initiatives indicated they believed the initiatives could risk the state's federal Medicaid funding and result in reduced tax revenues. The Auditor received no submission of estimated fiscal impact from proponents of the initiatives.

The Auditor then created a fiscal note, which recorded the responses received, and a fiscal note summary for each of the proposed petitions³ and, on March 29, sent these documents to the Attorney General as required by section 116.175.2.

³ The fiscal notes vary slightly due to differences in the proposed petitions, but the fiscal note summaries produced for each proposed initiative are identical.

State ex rel. Fitz-James, 670 S.W.3d at 4-5.

The Auditor prepared the identical fiscal note summary for each initiative petition, which states:

State governmental entities estimate no costs or savings, but unknown impact. Local governmental entities estimate costs of at least $51,000 annually in reduced tax revenues. Opponents estimate a potentially significant loss to state revenue.

Because the fiscal note summaries are identical for each of Dr. Fitz-James' proposed initiatives, and because the differences in the fiscal notes themselves do not affect our analysis, we refer to a single "fiscal note" and "fiscal note summary" in the remainder of this opinion.

The Attorney General notified the Auditor on April 10, 2023, that the Attorney General believed the "legal content" of the fiscal note and summary were deficient, because (in the Attorney General's view),

they: (1) did not accurately represent the true cost of the proposed measures to local and state government entities (because the fiscal notes did not do so), and (2) failed to adequately summarize the submissions the Auditor received regarding the potential loss of federal funding due to the proposed initiatives.

State ex rel. Fitz-James, 670 S.W.3d at 5.

Because he believed that the Attorney General lacked statutory authority to question the substantive correctness of the fiscal note and summary, the Auditor resubmitted his original fiscal note and summary to the Attorney General on April 21. On May 1, 2023, the Attorney General refused to approve the fiscal note and summary. The Attorney General's refusal to approve the fiscal note and summary prevented the Secretary of State from certifying the official ballot title for any of the initiative petitions under § 116.180, and prevented Dr. Fitz-James from soliciting valid signatures supporting the petitions under § 116.334.2.

"To break this impasse, Fitz-James filed a petition in the Cole County circuit court on May 4 seeking a writ of mandamus to compel the Attorney General to perform his duty under section 116.175.4 ...." State ex rel. Fitz-James, 670 S.W.3d at 6. The circuit court issued a writ of mandamus directing the Attorney General to approve the Auditor's fiscal note and summary. The Supreme Court affirmed. It explained:

The Attorney General challenges . . . the substance of the fiscal notes, i.e., the assessment of the proposal's cost or savings, if any, to state or local governmental entities. 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 [pursuant to § 116.175.3].

Id. at 8-9. The Supreme Court ordered the Attorney General "forthwith to comply" with the writ of mandamus issued by the circuit court. Id. at 13 n.10.

The Supreme Court issued its opinion in State ex rel Fitz-James on July 20, 2023. On the same day, the Attorney General issued new opinion letters approving the legal content of the Auditor's fiscal note and fiscal note summary under § 116.175.4. On July 26, 2023, the Secretary of State certified ballot titles...