Missouri Supreme Court hears Cape County Sunshine suit arguments

JEFFERSON CITY, Mo. -- Cape Girardeau County Commissioner Jay Purcell took his lawsuit against his fellow commissioners before a skeptical Missouri Supreme Court on Wednesday in his last chance to prove that an April 2008 meeting violated the state Open Meetings and Records Law.

In a 42-minute hearing, judges repeatedly questioned the way Purcell raised his objections to the meeting and whether there was any remedy available if the court did determine the commission broke the law. For several minutes, the court also focused on whether Purcell's case was flawed from the beginning because he sued only the county commission as a body, not the individual members.

"Generally, I think it is nonsense when a group tries to sue itself," Chief Justice Ray Price Jr. said. But that opinion aside, he asked attorney Tom Ludwig, who represented the commission, how the courts should act to hold public bodies accountable under the law.

The best and only legal way to do so, Ludwig replied, is to "sue the individual commissioners who are the offending parties."

But attorney J.P. Clubb, representing Purcell, argued that the Open Meetings and Records Law, commonly called the Sunshine Law, clearly allows for lawsuits that only name the public governmental body accused of violating the law.

Purcell lost his lawsuit at the trial court level, and his case was dismissed by the Eastern District of the Missouri Court of Appeals because it listed only the commission, not the individual members, as defendants. The Missouri Supreme Court took the case and could establish that commissions and other public bodies may be sued and, Purcell hopes, that the April 2008 meeting violated the law.

Purcell, Presiding Commissioner Gerald Jones and District 1 Commissioner Paul Koeper attended the hearing. Afterward, both Clubb and Ludwig declined to speculate on whether the questioning boded good or ill for their respective sides.

At the trial level, Associate Circuit Judge Stephen Mitchell of Stoddard County ruled that while the closed discussion "wandered off" from approved subjects, there were no knowing violations. The meeting notice also didn't violate the law.

"We are asking the court to call a Sunshine Law violation a Sunshine Law violation," Clubb said. "The trial court said, in my opinion, that one plus one equals three."

Purcell is asking the court to declare that the notice of a closed meeting was too broad and that the discussions within the meeting went far beyond what is allowed in closed sessions.

The court should listen to a recording of the meeting to decide for itself whether the notice and the meeting itself adhered to the Sunshine Law, Clubb said. "It can see that this is a roving commission meeting covering a wide range of topics that are not covered in the notes."

At the April 2008 meeting, Purcell made a motion that the commission go into closed session. It had two issues to discuss -- county Auditor David Ludwig's repeated use of his office computer to view and print pictures of actress Pamela Anderson and problems with a road easement.

In the room, auditor Ludwig was pressured to quit by Jones, Purcell and then-District 1 Commissioner Larry Bock. Prosecuting Attorney Morley Swingle was present, in part to tell the commission that state law made official misconduct, not personal misdeeds, the standard for ousting Ludwig.

Purcell concealed a digital recorder in his jacket pocket. A little more than a week later, on April 25, Purcell wrote an e-mail to his fellow commissioners that he had concerns that the meeting violated the Sunshine Law. When Purcell revealed he had made a recording -- a crime if the meeting was legally closed -- Prosecuting Attorney Morley Swingle sought an investigation by the Missouri attorney general.

During Wednesday's hearing before the Supreme Court, Tom Ludwig was asked why he thought Purcell used the courts to challenge the meeting's legality.

"Our position is that this was a legal and political strategy," Ludwig said. Not only was Purcell facing criminal charges, he was on the ballot seeking re-election.

Judges peppered both lawyers with questions about their legal strategy and whether there is anything the court can do if it finds the commission violated the law. Purcell is not asking for fines, which could only be imposed for a knowing violation of the law, nor is he asking for attorney fees.

Instead, he is asking for a declaration that the meeting violated the law.

"I don't see that what you are asking for is a relief that can be granted," Judge Laura Denvir Stith said.

A ruling that a violation took place would put the commission on notice, Clubb argued. Because the Sunshine Law allows judges considering other cases against the same governmental body when assessing penalties, a ruling that the April 2008 meeting violated the law would mean bigger penalties if the commission violates the law again, he said.

Purcell is asking the court to say "that the law means what it says it means," Clubb said.

A key to the county's defense is that a lawsuit under the Sunshine Law must name individual members of the body being sued. Clubb argues that naming individuals is optional.

J.P. Clubb, attorney for Jay Purcell, argues before the Missouri Supreme Court Wednesday. (Fred Lynch ~ flynch@semissourian.com)

At least one judge seemed willing to consider that Clubb may be right.

"Point to a provision that says you must sue individuals," Judge Michael Wolff asked Ludwig. "It defines public governmental bodies enough to include county commissions."

But Ludwig said the rule that individual members of a governmental body must be sued, not just the body itself, was well established in Missouri when the first version of the Sunshine Law was written in the 1970s.

"Surely our legislature did not intend to throw out 100 years of law," Ludwig argued.

rkeller@semissourian.com

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