Attorney calls county response to lawsuit 'scandalous,' 'impertinent'

Thursday, June 26, 2008
FRED LYNCH ~ Associate Commissioner Jay Purcell held up an audio recorder during a past meeting of the Cape Girardeau County Commission.

"Scandalous." "Impertinent." "Insufficient."

Those are three reasons cited in a legal brief asking a judge to remove some language used in the Cape Girardeau County commissioners' response to a Sunshine Law suit.

The 14-page motion-to-strike brief filed June 18 by attorney J.P. Clubb on behalf of 2nd District Commissioner Jay Purcell derides more than 20 paragraphs in the county's response "because materials are irrelevant, immaterial, impertinent, scandalous, an insufficient defense, argumentative and draw conclusions of law."

Tom Ludwig, the attorney hired to represent the county commission in the case, said a motion to strike is rare but "not unheard of."

"The best answer is that we're in the pleading stage, and lawyers have a right to object to the way another lawyer has pled the case," he said.

The lawsuit, filed May 14, stems from the closing of an April 17 commission meeting. During that meeting, County Auditor David Ludwig was accused of repeatedly misusing his office computer and the county's three commissioners disagreed over the proper way to handle a road easement notarized seven years after it was signed.

Purcell sued the commission for violating Missouri's open meetings and records act, nicknamed the Sunshine Law. He claims the commission did not issue a proper notice for the closed meeting and that matters discussed privately should have been public.

Morley Swingle, the county's prosecuting attorney and the commissioner's legal counsel, recused himself from the legal battle after which Tom Ludwig, a distant relative of the auditor, was hired.

In a June 4 response, the county asked the court to throw out Purcell's suit.

The county's legal brief, while not admitting the commissioners erred April 17, noted that county officials would more closely follow the law in the future.

But the county also asked that Purcell be charged with a class C misdemeanor for making an audio recording of the closed meeting. Ludwig's filing for the county also asked the court to seal the recording.

According to the Missouri attorney general's office, it is illegal to record a properly closed meeting without the permission of officials present. The penalty for doing so is up to 15 days in jail and fines up to $300.

No court date has been set for Circuit Judge Stephen Mitchell to hear the Sunshine case, and it is not clear where the case will be argued — in Mitchell's Stoddard County courtroom or one in Cape Girardeau.

Ludwig emphasized he is only working on the civil case and that he is not involved in an ongoing exchange of letters between Clubb and Swingle over Sunshine Law requests related to the case.

"This is a public case," Clubb said while releasing the documents Wednesday afternoon. "I don't think anything should be kept private."

Swingle's response to Clubb's requests for any past Sunshine Law cases or special prosecutor requests in Cape Girardeau County includes a statement that Purcell has "committed a crime, more than one, actually."

When contacted by phone and asked to define the crimes referred to in his letter, Swingle said, "I won't comment on an exchange of letters with a private lawyer who's sued the county."

On May 11, Purcell offered to turn over the April 17 recording and others he made of county business to the attorney general's office and asked for a state investigation. On May 12, Swingle asked the attorney general's office to investigate Purcell.

According to attorney general spokesman John Fougere, the state investigation, underway since May 12, covers both requests.

335-6611, extension 127

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