The two lawyers who filed lawsuits against Secretary of State Jay Ashcroft have until the end of business Thursday to file amended versions of their lawsuits — then be back in court Monday afternoon.
In a 20-minute hearing Tuesday afternoon, Cole County Circuit Judge Dan Green agreed with the attorney general's office that lawyers Anthony Rothert, for the ACLU, and Lowell Pearson, representing Joplin businessman David Humphreys, should have asked the court for a writ of mandamus.
If granted, that writ would be a command from the court for Ashcroft to take certain steps — although it could be appealed by either party.
Last month, after Gov. Mike Parson signed the abortion bill into law May 24, the ACLU — which objects to the entire law — and Humphreys — who doesn't like the bill's failure to allow a woman to choose an abortion if her pregnancy resulted from a rape or from incest — filed separate petitions to seek a statewide referendum on the law, so the people could endorse it or reject it.
In separate lawsuits filed last Thursday and Friday, both Rothert and Pearson challenged Ashcroft's decision to reject those petitions.
Their lawsuits each asked for the court to issue a temporary restraining order and a preliminary injunction, ordering Ashcroft to approve or reject the "form" of the petitions, and allow supporters of the referendum to seek signatures for their petitions.
But, Solicitor General D. John Sauer told the court, in a 28-page brief filed Tuesday: "Plaintiffs cannot obtain a temporary restraining order and preliminary injunction to undo what already has been done (Ashcroft's decision)."
Instead, he argued in the brief and during Tuesday's oral argument, that granting both lawsuits' requests for a restraining order and injunction would "deprive the state of its ability to present a defense on the merits (of the case)."
Sauer added: "We could litigate for another week or month or year, but in the meantime, they would achieve all the relief they are seeking."
Pearson countered: "We are here to get to the merits (of the case), as we will do it as quickly as the court will (give) us a half-day of hearing time."
Pearson added the situation raises two main legal issues.
"One is, does a partial emergency clause circumvent the rights of the voters to use the referendum process?" he told Green. "The second is, is there an emergency?
"Those are clearly legal issues to be determined by the courts — there's case after case that says that — and not by the secretary of state."
An emergency clause is at the heart of Ashcroft's decision to block the petitions, and the lawsuits' challenge to that action.
Lawmakers passed House Bill 126 — the Missouri Stands for the Unborn Act — on May 17, the Legislature's final day. Parson signed it a week later.
Except for one section, the law is due to go into effect Aug. 28.
But that one section contains the "emergency clause" that made it state law as soon as Parson signed the bill. It mostly involves adding a requirement that someone under 18 who's seeking an abortion must get consent from both parents or guardians, not just the one parent/guardian required under current law.
Missouri's Constitution says voters have a right to seek a statewide referendum to decide if a new should go into effect or be rejected, "except as to laws necessary for the immediate preservation of the public peace, health or safety."
The emergency clause includes constitutional language, and Ashcroft said the Constitution prevents him from approving the referendum petitions.
In fact, on Tuesday afternoon, he rejected a third petition that Pearson had filed last month on behalf of Humphreys and the Committee to Protect the Rights of Victims of Rape & Incest.
In a Tuesday news release about the third rejection, Ashcroft said: "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."
He noted some other states — including Arizona, Maryland, Oregon and Washington — have constitutional provisions that allow for a referendum on a part of a law.
"But Missouri does not have that option," Ashcroft said.
Rothert reminded Green that petitions on referendum issues must be turned in with their signatures to Ashcroft by Aug. 28 — the day state laws go into effect.
He said lawsuits and court hearings don't change that.
Rothert and Pearson each will file amended versions of their own lawsuits, to include the "mandamus" request.
Pearson told the News Tribune he didn't know whether he would include the now-rejected third petition in his amended complaint.