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Judge dismisses second abortion referendum lawsuit

Judge dismisses second abortion referendum lawsuit

June 15th, 2019 by Bob Watson in Local News

Cole County Circuit Judge Dan Green on Friday dismissed the second lawsuit challenging Missouri Secretary of State Jay Ashcroft's decision to reject three petitions seeking a statewide referendum on the state's new abortion restrictions law.

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"This court is not of the opinion that the preliminary order of mandamus should be granted and, therefore, no such order shall issue."

In dismissing the case, the judge also canceled a hearing that had been scheduled for Monday afternoon.

The original lawsuits — filed last week by the ACLU of Missouri and by Jefferson City attorney Lowell Pearson, on behalf of both Joplin businessman David Humphreys and the separate Committee to Protect the Rights of Victims of Rape & Incest — had asked the court to issue a temporary restraining order and a permanent injunction, requiring Ashcroft to finish the mandated petition review process and then allow the petitions to be circulated for signatures.

But the state argued at a court hearing Tuesday the lawsuits asked for the wrong legal relief, and Green said he would consider a request for a "writ of mandamus" instead.

Pearson filed an amended lawsuit — but Green dismissed it Friday, without holding another hearing.

Mary Jenkins, spokeswoman for the committee, told the News Tribune: "We are committed to protecting the rights of women and underage minors who are victims of rape and incest, and we are disappointed the court did not do so.

"For that reason, we are reviewing all options to ensure Missouri's abortion law is put to a vote of the people."

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Humphreys, a long-time financial supporter of Republicans and conservative causes, opposes the abortion bill because it didn't include exceptions for rape or incest.

The ACLU is opposed to the entire law.

But their referendum requests were the same — have a statewide vote where the public could reject the law as passed or uphold it.

Green dismissed the ACLU case Thursday, after the organization decided not to file an amended lawsuit.

Instead, the ACLU late Thursday filed its notice of its intention to appeal to the Missouri court of appeals division in Kansas City.

That could be Pearson's next step as well — although Case.net, the state court system's online docket reporting system, didn't show any motion filed yet in the Humphreys case.

Pearson had filed an amended petition Thursday, as Green had directed Tuesday, that included both his previous claims and one additional count for mandamus — which means asking for the court to order someone to take a specific action.

In his one-page order Friday afternoon, Green wrote: "This Court concludes that an action in mandamus is the exclusive remedy available to Petitioners that seek reversal of the Secretary of State's decision to reject a ballot measure."

Green then dismissed with prejudice — meaning they can't be filed again in a new lawsuit — the motions for a restraining order and injunction.

Then Green ruled against the mandamus motion as well.

At issue is House Bill 126, known by supporters as the Missouri Stands for the Unborn Act, which lawmakers passed May 17 — the Legislature's last day.

Its most publicized provision prohibits an abortion in Missouri after eight weeks — when a doctor should hear the fetal heartbeat for the first time.

The only exception to the effect of the new law is if an abortion is needed to save the mother's life — but there are no exceptions for women who become pregnant after being raped or the victims of incest.

The bill also contained one section that had an emergency clause, making it part of the state's laws as soon as the governor signed it.

Gov. Mike Parson signed the bill into law a week later — and the ACLU and Pearson both had submitted petitions for a proposed referendum within another week.

State law requires the secretary of state, attorney general and auditor to take certain steps to review the proposed petition about whether it meets the required form, for the auditor to prepare a fiscal note on how the measure would impact state and local governments if voters approved it, and for the secretary to write a ballot title.

But, before that process was finished, Ashcroft said his office determined the petitions could not be approved because Missouri's Constitution prohibits a referendum vote when a law already is in effect.

Ashcroft said in a news release last week: "Approving a referendum petition in which a portion of the law is already in effect would set a new precedent in Missouri. Never in Missouri history has a secretary of state approved a referendum petition in which a portion of the law was already in effect."

But Pearson and Tony Rothert, the ACLU's legal director, had argued that decision about whether an emergency clause covering only one section of a law should apply to the entire law should be left to a court.

Pearson wrote, in his amended filing Thursday, the secretary of state, attorney general and auditor "maintain a clear, unequivocal, non-discretionary legal duty to comply with the ministerial required by the Missouri Revised Statutes."

The attorney general's office represents itself and Ashcroft in the lawsuit and declined to comment Friday because the case still is ongoing.

Galloway also didn't comment Friday — although her office said a week ago: "Auditor Galloway has consistently expressed a deep concern about efforts to stifle the voice of the people on ballot initiatives (and) is fighting to uphold citizens' constitutional rights to hold Jefferson City accountable through the referendum process."

As of Friday evening, the court of appeals had not yet scheduled any hearings on the ACLU's appeal.