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Purcell to appeal Sunshine ruling

Saturday, October 25, 2008

Associate Commissioner Jay Purcell's attorney vowed Friday to fight on despite a court ruling that turned back almost every legal point in his case alleging Sunshine Law violations by the Cape Girardeau County Commission.

In his ruling, Associate Circuit Judge Stephen Mitchell of Stoddard County declared he found no purposeful or knowing violation of the Sunshine Law when the commission went behind closed doors April 17.

Mitchell's ruling is a complete vindication of the commission's claim that it did not violate the Sunshine Law, said Tom Ludwig, who represented the commission.

"Judge Mitchell made a tight and concise exact ruling," Ludwig said. "He courageously bit into the issues, and I think the court system worked the way it should have worked."

Purcell could not be reached for comment Friday after the ruling was released. But his attorney, J.P. Clubb, said he intends to file an appeal. The lawsuit served a purpose even if Purcell does not prevail on appeal, he said.

"Without this lawsuit we wouldn't have been talking about the Sunshine Law," Clubb said. "Purcell wouldn't have an opponent. That is what this lawsuit has created -- awareness. Hopefully it will spur other governments to follow the Sunshine Law."

In his ruling, Mitchell hinted that Purcell may have filed the lawsuit to shield himself from possible criminal sanctions for secretly recording the session.

"The court finds that the legislature did not intend to allow a public official to commit violations of Chapter 610 and then sue himself as a member defendant of that body in order to reap the equitable benefits of judicial enforcement as a shield from any repercussions of those violations," Mitchell wrote.

During the meeting, Purcell, Presiding Commissioner Gerald Jones and District 1 Commissioner Larry Bock tackled the possibility of a lawsuit by female employees offended by pictures that Auditor David Ludwig printed from the Internet. They also discussed how to deal with a resident's anger over a road easement that was notarized and recorded years after it was signed.

Wandering discussions

During the meeting, they also discussed whether they had the power to discipline Ludwig. While commissioners did discuss matters that they should have aired in public, Mitchell ruled that those actions were not enough for him to declare the whole meeting illegal.

"However, it is also clear to the court that the discussions held in closed session wandered off of 'potential litigation' to a large degree especially during the county auditor portion of the discussions," Mitchell wrote. "All public bodies should establish procedures and practices for closed session that would limit the rambling engaged in by this body on April 17, 2008, while in closed session."

The Missouri Open Meetings and Records Act, also known as the Sunshine Law, requires that public business be conducted in the open and allows for specific exemptions. A lawsuit is one exception. So are personnel matters and real estate sales or purchases. The law directs the courts and public bodies to view the law as expansive in what should be public and narrowly drawn regarding what can be kept secret.

Mitchell went too far in his ruling by saying that no violation of the Sunshine Law occurred because none of the commissioners knowingly or purposefully sought to avoid the rules, Clubb said.

It is not a question of intent, he said; instead, the lawsuit was seeking a declaration that the meeting violated the law in order to prevent future violations.

"I didn't ask for penalties for a reason -- we were not trying to prove intent and we didn't want to prove intent," Clubb said.

The first step in an appeal is to file a notice with the Eastern District Court of Appeals in St. Louis.

Ludwig said he saw no avenue for a successful appeal. "I don't know where he finds hope he could win on appeal," he said.

Mitchell was brought into the case after Judge Benjamin Lewis recused himself. Through Clubb, Purcell asked that the court rule that the language in commission agendas giving notice of closed meetings was faulty. He also asked that the entire meeting be declared a violation because it strayed away from the items allowed for closed discussion.

Recording as evidence

Purcell, unknown to his colleagues, recorded the meeting on a digital recorder in his pocket. The recording was part of the evidence that Mitchell considered before making his ruling.

In the 13-page ruling, Mitchell found that the meeting notice, the announced reasons for going into closed session before the vote and the matters discussed all comply with the requirements of the Sunshine Law.

In evaluating each member of the commission's actions, Mitchell noted that Purcell "varied from appropriate subjects of closed session" but did not knowingly or purposefully violate the law. Presiding Commissioner Gerald Jones participated in the off-limits discussion but sought to bring the talks back around to the correct matters, Mitchell noted. "The court finds that he both participated with Commissioner Purcell in varying widely from the appropriate subject or subjects of the closed session and acted as a shepherd attempting to bring the group back to the proper subjects," he wrote.

As for Associate Commissioner Larry Bock, "the court finds that he said the least of all the members of the commission at the April 17, 2008, closed session."

The potential for criminal prosecution of Purcell remains. Cape Girardeau County Prosecuting Attorney Morley Swingle, after learning that Purcell recorded the meeting, sought a special prosecutor from the Missouri attorney general's office to handle the case. The prosecutor, assistant attorney general Andrea Spillars, has not filed any charges. A spokesman for the attorney general's office declined to say whether that would occur. Any charge would be a misdemeanor.

Paying the bill

Purcell, as he campaigns for re-election against independent challenger Rock Finch, has said the lawsuit cost him $6,000. The county has received bills for $11,532 from Ludwig, Jones said Friday. If Purcell appeals, Jones said, he would seek to have the courts force Purcell to repay the county's legal bills.

The judge's advice to set policies for closed discussions is a good idea, Jones said. The issue of the auditor's future was taken up in the closed session because he didn't know it was out of bounds and he was trying to avoid embarassing Ludwig, Jones said.

If Purcell had admitted making a mistake by making the recording, the matter probably would have died months ago, Jones said.

"It would have been a lot cheaper for him if he had said 'I messed up,'" Jones said.

rkeller@semissourian.com

388-3642

Watch video of previous hearings on the Sunshine Law case


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That doofus judge sure doesn't look like the sharpest knife in the drawer, now does he?

If you read a clarification by Mr. Clubb, one has to wonder if this judge is fit to try cases. In this photo, and in reviewing his rationale, one does have to wonder about senility.

Just how much does it cost to buy a judge in Stoddard County? Not that this judge was bought off, I was just asking.

-- Posted by Robert Goodbody on Sat, Oct 25, 2008, at 4:45 AM

That doofus judge sure doesn't look like the sharpest knife in the drawer, now does he? Is it just me, or, does the judge appear a bit constipated, as well?

After reading a clarification by Commissioner Purcell's attorney, Mr. Clubb, given the rationale that this judge used in making his determinations, one does have to wonder if the Judge's medications, or, senility played any role in his decisions.

Also, I find it interesting that the judge would make a ruling this close to the election, and since it was framed against Commissioner Purcell, if this judge had been sought out to make a ruling and release it to attempt to affect our elections? Hmmm?

By the way, how much does it cost these days to buy off a Stoddard County Judge? Certainly I am not saying that Mitchell was bought off, it was just a question that came to mind.

-- Posted by Robert Goodbody on Sat, Oct 25, 2008, at 4:51 AM

That doofus judge sure doesn't look like the sharpest knife in the drawer, now does he? Is it just me, or, does the judge appear a bit constipated, as well?

After reading a clarification by Commissioner Purcell's attorney, Mr. Clubb, given the rationale that this judge used in making his determinations, one does have to wonder if the Judge's medications, or, senility played any role in his decisions.

Also, I find it interesting that the judge would make a ruling this close to the election, and since it was framed against Commissioner Purcell, if this judge had been sought out to make a ruling and release it to attempt to affect our elections? Hmmm?

By the way, how much does it cost these days to buy off a Stoddard County Judge? Certainly I am not saying that Mitchell was bought off, it was just a question that came to mind.

-- Posted by Robert Goodbody on Sat, Oct 25, 2008, at 4:51 AM

The final judgment of the Court was that none of the Commission members knowingly or purposely violated the Sunshine Law. That law makes one of these two mental elements essential to finding the law was violated. If something in the closed session was knowingly and purposely discussed which should not have been, it was incumbent upon Mr. Purcell's lawyer to point it out and convince the Judge. He failed to do that.

But then, maybe he was not trying that hard, because the discussion about the County Auditor (which arguably should have been discussed in open session) was driven by Mr. Purcell's ranting and demands while in closed session to continue the discussion of the potentially improper subject(Listen to the "secret tape" if you doubt that). Zealous lawyering would have required Mr. Purcell's attorney to fight hard to establish that Mr. Purcell himself was the one who was knowingly or purposely violating the Sunshine Law.

That alone shows the silliness of this lawsuit . . . and lends credence to the suspicion that the real goal of the lawsuit was to have the Judge declare that the meeting was not properly closed, and thus the secret tape recording could not have been illegal. Clever lawyering if you can pull it off, but again, Mr. Purcell's attorney failed in that effort as well.

-- Posted by Wiley Penner on Sat, Oct 25, 2008, at 7:22 AM

Many of the attached bloggers, like Mr. Purcell, prefer to join him and his unfortunate attorney Mr. Clubb in keeping the Commission and the public embroiled in their morass of self-created conflict and controversy.

Bottom line is that the Sunshine Law controversy, the park land deal, the Swingle book-on-website deal, and all the rest of Mr. Purcell's silly crusade don't carry the actual consequence--or culpability--of a bucket of warm spit. Where is the crippling corruption worthy of these past six months of sensational publicity?

The judge has pulled aside the covers and found, oh horror...not much. He now wisely sorts throught all the foolishness, exposes the true intents of the parties involved, and provides a way out.

Now the people of District 2 can finish the job by retiring Mr. Purcell from public service and the leaders of this county can set about to repair its clownish image in the region.

-- Posted by Humbugly on Sat, Oct 25, 2008, at 8:00 AM

This whole "morass" as you called it, would not have taken place, if the Sunshine Law had been followed, as Jay Purcell has pointed out.

The "fact" that Jay's attorney "failed" to convince the judge of that fact, is ridiculous. I think that we should take a closer look at the Judge. Just look at him. Not a very intelligent look on his face, now is it? I feel that Jay Purcell will be vindicated in appeal. Even if that should not happen, we, ourselves can judge the particulars and determine what happened.

That a Stoddard County judge has ruled against Jay's case, is not a big issue with me. Many of these local yokel judges bend with the wind so to speak. They all know each other, the know the county commissioners in the surrounding counties, and they may be even of the same political mindset. They may see nothing wrong with some of the more "prominent" citizens taking an olgarchic role in their community, as it is "best" for good governance, in their opinion.

How do we not know that this Judge Mitchell is not one of, or, sympathetic with "the good ole boy" model of doing things?

When you listen to SHUT UP and NO ARTICLE RAN at Commissioner Purcell's website, then you get a very good idea what we all are talking about here. You both have made a good effort to discredit Jay, but the horse is already out of the barn on this issue, and nothing that you can do, nothing that Judge Mitchell can do, rushing his decision out just before the election, nothing can deter us from the truth.

Thank you, Jay Purcell. People who are not even in your district, have told me that they WISH that they could VOTE for YOU.. The feeling IN your District, is the same, you do have strong support and our gratitude for fighting this fight for us.

Listen to SHUT UP www.jaypurcell.com

Listen to NO ARTICLE RAN www.jaypurcell.com

Then, YOU decide.

-- Posted by Robert Goodbody on Sat, Oct 25, 2008, at 12:49 PM

I have obtained a secret tape recording of the first meeting between Jay Purcell and his attorney J.P. Clubb, which preceded the filing of Purcell’s lawsuit against the County Commission. The following is a transcript of a portion of that meeting (in the interest of brevity, I have not transcribed the parts where Purcell talks about being a crusader against “old boy” backroom government, and Clubb discusses his expertise as a litigator and expert on the Sunshine Law):

Clubb: Let me see if I have this right. You made the motion to go into closed session to discuss the Auditor matter and something about an improper deed, a unanimous vote approved going into closed session, and during the closed session you and the other commissioners discussed those things?

Purcell: Right. I was raisin’ Hell and really getting after them. Those guys are corrupt old boy cronies, and I can prove it. The notice for the meeting didn’t say anything about those topics, and that’s illegal, and we talked about stuff that in closed session we shouldn’t have, and that’s illegal. I mean I can prove this.

Clubb: So you want me to file a Sunshine Law action to get a court to say this was an illegal act by the members of the County Commission?

Purcell: Right – can you do it?

Clubb: Normally such a suit would be against the individual commissioners who participated in the meeting.

Purcell: So what?

Clubb: Well, you are one of the commissioners – the law suit would have to be filed by you as the plaintiff, against you and the good old boys as defendants. You would be suing yourself.

Purcell: Is that a problem?

Clubb: Well, I’ve never had a client want to sue himself before – so I can’t say as I have an answer as to whether the law permits such a thing. It certainly seems awkward.

Purcell: Well, let’s just sue those crooked old cronies!

Clubb: Because it was their idea to publish a bad meeting notice, and then go into closed session and talk about things they should only discuss in open session? It was their idea, right? And they just duped you into making the closed session motion?

Purcell: No way, man, it was my idea to go into closed session, and I did most of the talking. I was really into it in that meeting, and I can prove it!

Clubb: Well, this all seems somewhat frivolous, and any violation of the Sunshine Law appears to have been de minimus. That’s Latin for “not enough to get upset about.” I don’t know what we could hope to accomplish with such a suit. By the way, you keep saying “I can prove it” about the things that went on in this meeting. Did someone secretly record the closed session? If so, that’s a crime and that person has a problem.

Purcell: Well, yeah, but I didn’t know I couldn’t do that. Am I in trouble just for trying to be a good guy and show the corruption that goes on with those guys?

Clubb: Perhaps not. If we could establish through a lawsuit that it really wasn’t a properly closed meeting, then even though you secretly recorded the meeting, it really was not a crime. You see, in the law, perception matters far more than reality.

Purcell: Well, even if I have to sue myself, that sounds like what we need to do so I don’t get charged with a crime. Will the lawsuit take a long time in court?

Clubb: Probably not – you see, we’ll file the papers in court, and get that into the headlines right away. You know how the paper eats this stuff up! Then, before any of the dust settles, we’ll send a letter to the County saying all we want to settle is a consent agreement that the meeting was not properly closed, and of course, we’ll get a copy of that to the newspaper as well. I’ll put something in there about avoiding the cost of litigation, and I can even offer to teach a class about the Sunshine Law. Everybody benefits from that, the press will be all over the story, and they’ll settle quickly just to kill the story. I guarantee you that!

Purcell: Okay, buddy, you’re my man, so get me started suing myself and saving me at the same time!

-- Posted by Wiley Penner on Sat, Oct 25, 2008, at 1:10 PM

Wow. Wiley, you really have some time on your hands. And you have poor writing skills. And you like pedestrian fiction. You and Morely have a lot in common.

I always worry when people come out with all this bravado about how they've been vindicated, etc. If Purcel really does win on appeal (which he might) all you folks crowing about this ruling are going to look kind of stupid. Oh, wait.

-- Posted by jerryjerrydingleberry on Sat, Oct 25, 2008, at 1:32 PM

If the statute doesn't require intent to be proven, this judgement will get overturned in a New York minute. Given the fact that the judge essentially found that the actions were as alleged, but that intent needed to be shown, I have serious doubts that this judgement will be upheld on appeal. And from the language of the staute, there is no indication whatsoever that there is a requirement for intent to be shown. To say the judge went WAY out on a limb on this is a gross understatement.

-- Posted by heye1967 on Sat, Oct 25, 2008, at 1:48 PM

Mr. Wiley,

I just read this story and your blogs. The question that immediately comes to my mind is, how on earth did you come up with a "secret recording" of Jay Purcell and his attorney, Mr. Clubb?

In every meeting that I ever had with any attorney, I have never once been recorded, 'secretly' or otherwise, except when giving a deposition. Any meetings with lawyers may be dictated and then transcribed at a later time.

Also, if their meeting was recorded without Jay's knowledge, then his attorney was breaking the same law that he was discussing with Mr. Purcell.

Lastly, any meeting held between an attorney and a client is STRICTLY CONFIDENTIAL! It cannot be divulged publicly or privately because of the attorney/client privilege clause.

If this is a true recording of that meeting, then you have broken the law by divulging this closed meeting between a client and his attorney! Even reporters cannot do that! You may want to hire your own lawyer and hope that your conversations aren't made public!

-- Posted by sccynic on Sat, Oct 25, 2008, at 6:18 PM

Judge Mitchell is :unamused:

-- Posted by isobar on Sat, Oct 25, 2008, at 11:34 PM

Sccynic, there are a number of possibilities to explain this "secret" recording:

It could be that Mr. Clubb's office is bugged and he is not aware of the fact.

Though unlikely, maybe Mr. Clubb is secretly working for the rich folks and "good old boys" that run this county for their sole benefit, to the detriment of the County citizens(as some on these blogs suggest).

It might be that Mr. Purcell wants this information revealed for his own purposes, and he recorded the meeting himself, to be released publicly to bring about whatever ends he is seeking(of all the things one might question in this sorry episode, that Mr. Purcell keeps a recorder handy is not one of them).

Perhaps their meeting was in a public place, and one of Mr. Finch's polical operatives was fortunate enough to be nearby and have his tape recorder handy.

It could be that there is no such recording.

The point sccynic, is that this is much ado about nothing. It is a manufactured story, that is just as bizarre as all of the suggested sources for the "secret" recording mentioned above, except the last.

Alas, we often find ourselves with competing explanations for events which occur around us, and we want to know which of those explanations is true. More often than not, in my humble opion, the motive a person has to bring about an outcome explains far more about the true purpose of his actions than all of his words to the contrary. When, as a member of a public body, you secretly record a closed session meeting of that public body, after you have asked for the closed session, and vigorously participated in and extended that closed meeting discussion, and then sue yourself as a member of that public body and ask a Court to say that the closed session and the discussion in the closed session were illegal, my question is simply this: Why, and what is your motive? For me, the only reasonable explanation is that Mr. Purcell thought he could get the Commission into a closed meeting and get the other Commissioners to say something that would later be politically beneficial to Mr. Purcell. As fate would have it, though, through his lawyer or otherwise, he learned that it was a crime to record a public body's closed session, and what we have witnessed since his suit was filed has been a clever, but unsuccessful, attempt to avoid facing the consequences of his actions. You, of course, are free to draw your own conclusion.

-- Posted by Wiley Penner on Sun, Oct 26, 2008, at 12:36 AM

Thank you, Jay Purcell. People who are not even in your district, have told me that they WISH that they could VOTE for YOU.. The feeling IN your District, is the same, you do have strong support and our gratitude for fighting this fight for us.

Listen to SHUT UP www.jaypurcell.com

Listen to NO ARTICLE RAN www.jaypurcell.com

Then, YOU decide.

-- Posted by Robert Goodbody on Sun, Oct 26, 2008, at 2:25 AM

Henny Penny is not "thinnking" as he alleges, as he meanders along with his diatribe against Jay Purcell, he is propagandizing to us. For whom, one might ask?

There have been a whole host of friends of the good ole boys and their stooge candidate, Rock Finch come on here and attempt to besmerk Jay Purcell.

This attempt to get a compliant judge in Stoddard County to rush out a judgment against Jay Purcell just prior to the election is about the lowest from of slime that I have ever seen. Those good ole boys must be very desperate. They have sunk almost $20,000 dollars into trying to get their stooge, Rock Finch, elected and to oust our courageous 2nd District Commissioner, Jay Purcell.

Anyone know what is going on at Rock Finch's treasurer's business, TELE-LINK on North Kinghshighway across from Ford Groves? For the last several days, all of the Republican signs at Kathy Swan's place of business, Telelink, are gone, including that of Rock Finch.

Is Kathy Swan the local chairwoman of "REPUBLICANS FOR OBAMA," and that is why she took down all those signs?

Interesting, very interesting. Along about Wednesday, just when Senator Obama was about to go to Hawaii to see his deathly ill grandmother, all of the Republican signs at Kathy Swan's TELE-LINK, including Rock Finch's sign, come down. Is she no longer the good ole boys pick to be Finch's treasurer?

-- Posted by Robert Goodbody on Sun, Oct 26, 2008, at 2:36 AM


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