Two separate legal briefs filed in Cape County Sunshine suit appeal

Two separate legal briefs on the Cape Girardeau County Commission Sunshine Law suit are being filed today with the Missouri Eastern District Court of Appeals. Both address the Oct. 24 ruling by Judge Stephen Mitchell, who said that during an April 17 closed meeting, the county commission did not knowingly violate Missouri's Open Meetings and Records Act, nicknamed the Sunshine Law. He did not impose any penalties on the commissioners but ordered 2nd District Commissioner Jay Purcell to pay lawsuit costs. The appeals court brief filed today by Purcell's attorney, J.P. Clubb, argues that notice for an April 17 meeting was improper; commissioners broke the law by discussing topics not included on the agenda that day; and that those violations, no matter how unintentional, are "not an excuse for breaking the law," Clubb said. The Missouri Press Association, while stating it takes "no position and supports neither party," took exception to a narrowly defined point in Mitchell's ruling. MPA attorney Jean Maneke filed an amicus curiae, or "friend of the court" brief, today arguing that Mitchell's ruling erred in saying Cape Girardeau commissioners were properly discussing "potential litigation" in a closed meeting. The brief points out "the discussion clearly did not involve a matter of either a pending legal action or cause of action, nor did it involve confidential or privileged communications between the commission and its attorneys." "We realize the Court of Appeals will have the option to address one issue involving the Sunshine Law — the exception allowing closing of meetings for discussion of what are termed 'causes of action' under the law," said MPA executive director Doug Crews in a written statement Monday. "Those words are often abused by members of public governmental bodies who close meetings, when there is no real threat of litigation. We believe the facts of the case show that was the case here," he wrote. Despite the clear limits of the MPA brief, Clubb said he was glad it was filed. "The baseline is, did the Cape County Commission violate the law? We say they did. The MPA says they did. The rest is the lawyers arguing about the finer points of law," he said. On April 17, the commissioners met in a closed session, during which they confronted County Auditor David Ludwig for misusing county computers and discussed a controversial road easement. Morley Swingle, the county's prosecuting attorney and the commission's legal counsel, was present during the closed portion of the meeting. Purcell filed suit in May against the commission alleging Sunshine Law violations after revealing he had secretly recorded the meeting. If the meeting is determined to have been properly closed, Purcell faces possible charges. It is a Sunshine Law violation to record a closed meeting without the consent of those officials present. The attorney hired to represent the county commission, Tom Ludwig, will have 30 days to file a response, after which Clubb has 15 days to file a reply. After that, Clubb said, the court may ask if either side wants to schedule an oral argument. "I will ask for that," he said. pmcnichol@semissourian.com 388-3646 Have a comment? Log on to semissourian.com Editor's note: Two typos were corrected in this story, one to place Purcell's full name at first reference, the other to replace an "e" with a "t."