Missouri State Auditor and Democratic gubernatorial candidate Nicole Galloway has filed a civil lawsuit in Cole County Court against Missouri Secretary of State Jay Ashcroft.
Galloway is asking for a declaratory judgment, motion to quash and injunctive relief because, according to the suit, "in less than 30 days before a major election, the Secretary of State is commencing an entirely unlawful 'investigation' against another statewide elected official based upon a fatally flawed complaint from a dark money organization."
Galloway claims the complaint is based on an alleged violation of Section 115.646 of the Revised Statutes of Missouri, which she says does not apply to statewide officials.
Section 115.646 states, "No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office."
The statute also states, "This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure."
Galloway's lawsuit names Liberty Alliance USA as the dark money organization she earlier referred to. The lawsuit shows the organization was registered just over a year ago by Kristen Ansley, former director of Missouri Alliance for Freedom, through Matthew R. Muller of the Graves Garrett Law Firm.
Galloway, as state auditor, is responsible for performing investigations and audits required by law, including the investigation and assessment of fiscal consequences of legislative acts.
Galloway's lawsuit refers to House Bill 126, which Gov. Mike Parson signed into law in May 2019. The bill would have restricted abortion access in Missouri and was set to go into effect in August 2019, until a federal judge placed an injunction on part of the bill the day before it could be enforced.
HB 126 included a fiscal note showing, according to Galloway's lawsuit, "millions of dollars of potential losses of state revenue. Specifically, the fiscal note was estimated to have costs that exceed $4.9 million to nearly $5 million to general revenue."
Galloway's lawsuit notes the Missouri Department of Social Services had stated that a prior version of the bill could result in the loss of all federal Medicaid funds, which amounted to over $7.2 billion in Fiscal Year 2019.
Seven days after Parson signed the bill into law, Galloway submitted an editorial to the St. Louis Post-Dispatch about the legislation. She noted she has often stated her position on matters publicly, including "dark money's corrupting influence in Jefferson City."
At the time she wrote the editorial, Galloway notes, she was not a candidate for the upcoming election. She added, "It is reasonable and lawful for a statewide elected official, such as the State Auditor, to state her official opinion on matters of significant interest to the state and its citizens."
Galloway says in her lawsuit that the secretary of state has "limited authority" to conduct investigations when a person files a complaint alleging violation of Section 115.646.
The lawsuit shows that, on Sept. 8, Chris Vas, executive director of Liberty Alliance, purportedly submitted a complaint to the secretary of state, which Galloway said "was 442 days after the publication of the editorial." Galloway also notes that neither the complaint nor its allegations were sworn under penalty of perjury.
Galloway cites a subsection of Section 115.642 that states the secretary of state is required to dismiss a "frivolous complaint which shall mean an allegation clearly lacking any basis in fact or law."
Galloway's suit references a letter dated Dec. 10, 2018, from State Solicitor John Sauer with the Attorney General's Office that was sent to Ashcroft on an analysis of the secretary of state's authority under Section 115.642. Galloway claims the letter states "unequivocally that a statewide officer holder, such as the Attorney General or the State Auditor, is not a political subdivision."
The lawsuit shows that, on Sept. 29, the secretary of state sent a letter to the State Auditor's Office stating his office was undertaking a "review" of the complaint. The letter did not indicate an investigation had been initiated under Section 115.642, according to the lawsuit. On the same day, Galloway said, the secretary of state requested records from the State Auditor's Office under the Sunshine Law.
Galloway's suit shows the secretary of state served the records custodian of the State Auditor's Office with a subpoena for the same records requested under the Sunshine Law on Tuesday. Galloway claims the secretary of state had no authority to subpoena records under the Sunshine Law.
The case has been assigned to Cole County Presiding Judge Pat Joyce, but no court date has been set.
Galloway is being represented by her chief litigation counsel, Joel Anderson. Online court records do not list an attorney for Ashcroft.
Ashcroft issued a statement regarding the lawsuit Wednesday afternoon.
"We received a complaint against Auditor Galloway. This complaint was substantially similar to the one filed against then-Attorney General Josh Hawley in 2018, the same complaint Auditor Galloway helped us investigate," Ashcroft said.
"Our office made a very narrowly tailored request for documents to the Auditor's office - any emails or documents related specifically to an op-ed submitted to the St. Louis Post-Dispatch - in order to allow us to come to a quick resolution. Instead, her office failed to comply with the Sunshine law by stating it would take them at least 30 days to provide our office the documents since our request was so large. Because the Auditor's office failed to comply with the Sunshine law, our office issued a subpoena for the emails."
"If her office would provide the documents which show there was no wrongdoing, we could close this investigation and move forward," Ashcroft said.
This article was updated at 3:25 p.m. Oct. 7, 2020, to add a statement from Secretary of State Jay Ashcroft.