Sides in Cape Girardeau County Sunshine Law suit appear before judge

FRED LYNCH ~ flynch@semissourian.com Attorney Tom Ludwig speaks for the Cape Girardeau County Commission at a hearing Thursday before Judge Stephen Mitchell in the Common Pleas Courthouse in Cape Girardeau. County Commissioner Jay Purcell, left, and his attorney, J.P Clubb, listen. [Click to enlarge]

As he argued for a ruling against Jay Purcell in his Sunshine Law case against the Cape Girardeau County Commission, attorney Tom Ludwig questioned both Purcell's motives and his legal right to pursue the lawsuit.

But Associate Circuit Judge Stephen Mitchell of Stoddard County, hearing the case instead of a local judge, said he would try to settle all the issues, legal technicalities and the merits of Purcell's charge that the commission illegally closed an April 17 meeting when he issues a ruling.

At the end of a 45-minute court hearing Thursday in Cape Girardeau, Mitchell gave Ludwig and Purcell's attorney, J.P. Clubb, 14 days to prepare a suggested court order for his review. He did not indicate when he might rule.

Mitchell said he would not address the bitterness created by Purcell's lawsuit. "It is not for this court to speculate on why this dispute has not been settled short of litigation," he said. "That will be left to voters, as it should be. If resolution of these disputes has been possible short of litigation, that would haved already happened."

Purcell is seeking a ruling that the commission's closed session April 17 violated the state Sunshine Law. At that meeting, commissioners discussed problems with the recording of a road easement and Auditor David Ludwig's use of his office computer to view and print pictures of actress Pamela Anderson.

Purcell secretly recorded the meeting. Clubb argued to Mitchell on Thursday that the recording proves the closed discussion went beyond what the law allows.

Purcell, the District 2 county commissioner, is attempting to use his standing as a citizen to sue the public body of which he is a member. Since April, Purcell has become increasingly estranged from his two colleagues, Presiding Commissioner Gerald Jones and District 1 Commissioner Larry Bock, over a variety of issues including the road easement, his secret recording of conversations and meetings, and the sale of county park land.

Judge Stephen Mitchell presides at a hearing Thursday on Cape Girardeau County Commissioner Jay Purcell's lawsuit alleging Sunshine Law violations. FRED LYNCH flynch@semissourian.com [Click to enlarge]

In response to the conflict, insurance broker Rock Finch filed for election to Purcell's seat and has the backing of Jones, several other county officials and many prominent Republicans despite Purcell's status as a Republican incumbent.

Clubb argued the meeting notice for April 17 was flawed because it cited, in a boilerplate manner, several potential reasons for closing a meeting. "When you give notice that may talk about anything and everything, they give notice of nothing."

The arguments raised by Ludwig, Clubb said, misinterpret the Sunshine Law. The burden of proof is on the county to show it complied with the law, he said. The law directs the courts to strictly construe the exemptions to openness and give a liberal interpretation to the sections calling for open government.

"They cannot meet that burden," Clubb said.

Ludwig's legal arguments rely heavily on the exemption for discussion of matters related to litigation. In court, he said both the easement problem, in which an easement granted years ago was recorded over the landowner's objection, and Ludwig's Internet use, which had offended female employees in his office, could provoke a lawsuit.

But Clubb noted that when the meeting was closed, the motion in open session cited the personnel and real estate exemptions as the reason for closing the meeting. There was no pending litigation and statements were made in the meeting that no lawsuits were expected, Clubb said.

"The county commission went looking for another reason after the fact," he said.

In reply, Ludwig sought to portray Purcell's lawsuit as an attempt to forestall criminal prosecution. Secretly recording a properly closed meeting is a misdemeanor under the Sunshine Law.

In addition, Ludwig said, if there was any violation of the Sunshine Law because the closed meeting included topics that are not proper for a closed session, Purcell is to blame.

"It is clear that the presiding commissioner tried to keep control of this meeting. It is commissioner Purcell, in suing himself, who's complaining about his own actions, and the only reason he is doing that is he is trying to defend a potential criminal prosecution," Ludwig said.

Ludwig sought to argue that as a member of the county commission, Purcell doesn't have standing to sue. And he argued that the county commission is "not a legal entity" that can be sued over the alleged violations. "This is a strange and bizarre case where, for the reasons we have set out to the court, the plaintiff has brought this action and claims at least by inference that he has standing to sue in this case."

Ludwig acknowledged the commission strayed from the stated reasons for closing the meeting. "The problem that arises here is that on this date, this commission went off of those subjects and discussed other items."

But he blamed Purcell for bringing up the forbidden topics.

rkeller@semissourian.com

338-3642

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Sunshine Law hearing Part 1

Sunshine Law hearing Part 2