July Newsletter (Issue 07-2016)

Missouri Senate Did Not Violate Sunshine Law Or Right Of Freedom Of Speech And Association By Denying Video Taping Of Meetings

sunshine-smileyProgress Missouri (Progress), was denied by the Missouri Senate the right to videotape open Senate committee meetings.  Thereafter, Progress filed a two-count petition in circuit court alleging that the Senate prohibited Progress from videotaping open meetings of Senate committees in violation of Missouri’s Sunshine Law, Section 610.020.3, and its right of freedom of speech and association.

Section 610.020 .3 provides:

“A public body shall allow for the recording by audiotape, videotape, or other electronic means of any open meeting.  A public body may establish guidelines regarding the manner in which such recording is conducted so as to minimize disruption to the meeting.  No audio recording of any meeting, record, or vote closed pursuant to the provisions of Section 610.021 shall be permitted without permission of the public body; any person who violates the provision shall be guilty of a class C misdemeanor.”

In addition, Senate Rule 96, established by the Senate addresses camera usage at Senate committee meetings.  It provides that persons “…with cameras, flash cameras, lights, or other paraphernalia may be allowed to use such devices at committee meetings with the permission of the Chairman as long as they do not prove disruptive to the decorum of the committee.”  Count I of Progress’s petition alleges that various chairmen of Senate committees have prohibited Progress from filming meetings, that Senate Rule 96 is not an exception to Missouri’s Sunshine Law and does not allow the Senate to deny permission to Progress to videotape hearings in the absence of evidence that such recordings will prove disruptive.  Count II of Progress’s petition alleges that the Senate violated Progress’s freedom of speech and association.

The Senate filed a Motion to Dismiss Progress’s petition on the grounds that Progress’s petition acknowledged that committee meetings are recorded by Senate Communications and made available to the public.  The Senate argued that the recording and availability of committee meeting recordings to the public via Senate Communications, as well as allowing the Missouri Capitol News Association to record meetings, satisfies Missouri’s Sunshine Law.  The Senate further contended that, Missouri’s Sunshine Law explicitly authorizes the Senate to “establish guidelines regarding the manner in which such recording is conducted so as to minimize disruption to the meeting” and the Senate has done just that by Senate Rule 96.  The Senate also argued that, its right to promulgate and enforce its own rules was constitutionally governed by the Missouri Constitution, which authorizes the Senate to “determine the rules of its own proceedings.” Consequently, the Senate contended that any argument by Progress challenging Senate Rule 96 itself was non-justiciable as a “political question.” The trial court granted the motion to dismiss and Progress appealed to the Western District.

No Violation of Sunshine Law: The Western District reasoned that: “Because Missouri’s Sunshine Law expressly allows for the creation of guidelines to effectuate the recording of public meetings while minimizing disruption, and there is no dispute that the Senate requires Senate Communications to record committee meetings and to make those recordings available to the public, Progress’s contention that the Senate must allow Progress to personally record meetings fails to sufficiently articulate a claim for violation of the statute.”  Furthermore, the “…statute does not state that all attendees must be allowed to record meetings so long as doing so is not disruptive; rather, it grants discretion to each individual public body affected by the law to define for itself, through guidelines, how best to enforce the law while minimizing disruption to the meetings of that particular public body.”

Rule 96:  Senate Rule 96 serves as a guideline that falls within the Missouri Constitution allowing the General Assembly to establish its own proceedings.  The challenge by Progress to Rule 96 is not a justiciable controversy because it presents a “political question.”  Rule 96 is a rule governing the Senate’s own proceedings that “…flows from the Senate’s exercise of the commitment of power granted to it by the Missouri Constitution and is not reviewable by a court.”  Progress Missouri, Inc. et al., v. Missouri Senate et al., (WD79459, 06/28/16)

Comment Howard: This opinion is very useful in defending the authority of local governmental bodies to establish their own procedures (within parameters).  If your authority over legislative proceedings is challenged you may want to look at charter provisions since it is not uncommon for a city or county charter to contain a provision that allows the local legislative body to establish its own procedures.

Eighth Circuit Holds That There Is No Constitutional Right To Access Governmental Information

A recent Eighth Circuit opinion is of interest with respect to whether or not there is a constitutional right to access governmental information.  A political activist in West Albany Township, Minnesota, filed a lawsuit alleging that withholding certain governmental documents violated his First Amendment Right of free speech, association, and petition for redress of grievances.

In upholding the dismissal of the case by the trial court the Eighth Circuit noted that the United States Supreme Court has “never intimated a First Amendment guarantee of a right of access to all sources of information within governmental control.” “The First Amendment guarantees a right to publish information, but not necessarily a right to gain information.” Eggenberger v. West Albany Township, (8th Circuit., 15–1378, 04/21/16)

Guilty Plea To Felony Charge Limits Right To A Concealed Carry Permit

121712_gun_salesOn June 8, 1960, Stallsworth pled guilty to burglary, a felony offense.  On November 24, 2004, Governor Bob Holden granted Stallsworth a full pardon from the 1960 burglary conviction.  Stallsworth applied for and received a concealed carry permit from the Sheriff of Buchanan County in 2005.  Stallsworth successfully renewed his concealed carry permit in Buchanan County.  In 2014 Stallsworth had moved to Jackson County.  When Stallsworth attempted to renew his concealed carry permit to reflect his new residence in Jackson County the Sheriff denied Stallsworth’s request due to his criminal history based upon Stallsworth pleading guilty to a felony in 1960.

Stallsworth appealed the Sheriff’s denial of his request and following a trial, the trial court denied Stallsworth’s request to renew his concealed carry permit based upon Stallsworth’s 1960 conviction for burglary.  Stallworth appealed to the Western District, which affirmed the trial court’s decision.

Section 571.101.2(3) provides that an applicant is ineligible for a concealed carry permit if he “has . . . pled guilty to or entered a plea of nolo contendere or been convicted of a crime punishable by imprisonment for a term exceeding one year under the laws of any state or of the United States . . ..”

With respect to the effect of a pardon on Section 571.101.2(3) the Western District followed the Missouri Supreme Court’s decision that held when a person is pardoned, “the fact of conviction is obliterated but the guilt remains;” therefore, Section 571.101.2(3) bars Stallsworth from receiving a concealed carry permit because he pled guilty to a felony.  Stallsworth v. Sheriff of Jackson County, (WD78536, 05/31/60)

Violation Of Attorney Client Privilege By Assistant Prosecutor Disqualifies The Entire Office Of The St. Louis County Prosecutor

 94738-004-A1250B61In State ex rel. Winkler vs. The Honorable Stephen H. Goldman, (ED 104030, 04/5/16), the Eastern District disqualified the entire St. Louis County Prosecuting Attorney’s Office (Prosecutor) from a criminal case due to an ethics violation of the attorney-client privilege by the Prosecutors (which implicated Winkler’s right to counsel and due process under the 6th and 14th Amendments to the United States Constitution).  The facts of this case are complicated, and were described by the Court as unique but the analysis by the Eastern District establishes general principles that may be useful to the practice of local government law.

Facts: Attorney Neil Bruntrager, (“Defense Counsel”) represented Winkler in a criminal matter involving related charges of murder and child abuse.  During his representation Defense Counsel met numerous times with both Winkler and her Husband to discuss the interrelated juvenile and criminal cases.  Defense Counsel entered his appearance in a related juvenile matter on behalf of both Winkler and Husband and informed the Prosecutor that Defense Counsel represented Winkler and her Husband in the juvenile matter.  Defense Counsel was the attorney of record for both Husband and Winkler in the juvenile matter from late 2011 until November 2014.

In September 2015, the Prosecuting Attorney’s Office for St. Louis County (PA) received a multiple page email regarding Husband’s thoughts about Relator, their marriage, their history together, and information about the pending cases.  The PA forwarded this information to Defense Counsel.  In October 2015, Winkler moved to exclude documents acquired by the Prosecutor on the basis of violations of Winkler’ spousal privilege, attorney-client privilege, and work-product privilege.  Despite the motion to exclude the assistant prosecuting attorneys interviewed Husband on November 17, 2015, and questioned him about Winkler’s trial strategy, defenses, and other privileged information.  The recorded interview was sent to Defense Counsel.

On November 23, 2015, Defense Counsel moved to disqualify the entire PA Office and or dismiss all charges on the grounds that the PA violated Winkler’s attorney-client privilege thereby affecting her constitutional rights under the 6th and 14th Amendments.

On February 8, 2016, the trial court issued a sealed order entering findings of fact and conclusions of law finding that Defense Counsel had told one of the assistant prosecutors that Defense Counsel jointly represented Husband and Wife in the juvenile case.  The trial court held that, because the assistant prosecutors did not understand they violated Relator’s attorney-client privilege, there was no intentional fraud upon the court.

The trial court concluded that assistant prosecutors had violated Winkler’s attorney client and work-product privileges, thereby violating Relator’s due process and Sixth Amendment rights.  The trial court further concluded that information learned by the PA provided a tactical advantage by providing previously unknown information and possible trial strategy.  The trial court found these violations prejudicial to Defense and excluded certain evidence in an attempt to cure the prejudice.  The trial court also ordered the case unsealed, except for the juvenile files (and mention of the files’ content elsewhere in the pleadings).

Objecting to parts of the trial court’s order Winkler filed a Petition seeking a Writ of Mandamus and or Prohibition From the Eastern District compelling the trial court to disqualify the St. Louis PA from her criminal case and or to prevent PA from proceeding to trial.  The Defense further seeks to restrain the trial court from unsealing court records pertaining to an inquiry into violations of Relator’s due process and Sixth Amendment rights.

General Principles (With Comments)

  • The Eastern District expanded the trial courts decision by its conclusion that the trial court’s analysis was not broad enough to recognize the seriousness of the violation of the fundamental constitutional rights of the Defendant to secure counsel under the 6th and 14th amendments.  Furthermore, strict scrutiny applied because the right to counsel is a fundamental right protected under the Constitution. This analysis led to the conclusion by the Eastern District that the only workable remedy was to disqualify the entire office of the PA from any involvement in this case and transfer the case to a special prosecutor.  As the Court noted, “Once the bell is rung you cannot undo it.”
  • This case is unique because prior to this decision there were no Missouri cases involving the 6th and 14th Amendments right to legal counsel in a criminal matter where that right was impaired by an ethics violation of the attorney-client privilege. While this case, may be is a rare bird, the breadth of the language of the court may be applicable in other cases.
  • Since a right to counsel is a fundamental legal right the court applied strict scrutiny thereby making it difficult to overcome any argument that finds the right was violated.  In addition, the court adds an additional element stating that courts must take extra care “to avoid any appearance of impropriety.”

The St. Louis Post-Dispatch intervened for the limited purposes of a hearing regarding the confidentiality of evidence and public access involving the case.  The decision of the trial court, denying the Post-Dispatch’s motion for access was affirmed by the Eastern District. Certainly, if you are battling the media over access to records in a similar situation you should look at this case.  State of Missouri, ex rel. Winkler vs. The Honorable Stephen H. Goldman, (ED104030, 04/5/16)

What Constitutes A Knowing Or Purposeful Violation Of Sunshine Law?

Bright-Sunshine-Background-Vector-02If there is a knowing or purposeful violation of the Sunshine law the governmental body is subject to an award of attorney’s fees, civil penalties and cost, which incentivizes plaintiffs to bring these lawsuits.  Of course, the fight over access to records is just a part of a larger battle to find support for a mega dollar lawsuit against the City and individual police officers.

In 2010, Plaintiffs believed that one or more Arnold police department employees had accessed Plaintiffs’ confidential records in the “Regional Justice Information System” (REJIS) database.  In September 2010, Ms. Laut filed a complaint with the Arnold police department, and the department completed an internal affairs investigation.  Plaintiff’s counsel sent a Sunshine law request to the City of Arnold (City) asking for “any and all incident reports, Internal Affairs investigative reports and records of any type (including e-mail and text messages)” related to the searches of the REJUS database and action taken by the City.

The attorney for the City replied that there had been no criminal investigation and, therefore, no incident report or arrest record.  The City stated there had been an internal affairs investigation but the resulting report and all other documents requested by Plaintiffs were closed under Section 610.021 because they contain personnel information about specific employees.

Plaintiffs then filed a petition for preliminary relief, disclosure of records, statutory damages and attorney’s fees.  Plaintiffs claimed that the records were part of a criminal investigation and were open records because, whatever the original motivation for the investigation, under federal law someone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer” commits a federal crime that is punishable by fines or imprisonment.  Plaintiffs alleged that the City no longer employed the employee who was the subject of the investigation; therefore, there was no longer an investigation into whether or not a crime had been committed thereby making the record open. Furthermore, the City if the City knowingly or purposely violated the Sunshine Law it is subject to the statutory remedies of civil penalties, costs, and attorney’s fees.

After considerable legal maneuvering, including a remand by the Missouri Supreme Court, the trial court conducted an in camera review and hearing to determine if the records were closed under the Sunshine Law.  The trial court found that the City’s “contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate.”  The trial court stated that the internal affairs investigation was initiated after a complaint of alleged criminal activity and the investigation became inactive when the subject of the investigation resigned, making the internal affairs report a record of a closed investigation that must be disclosed under Section 610.100.2.

The trial court then held a hearing on Plaintiff’s application for attorney’s fees and a civil penalty under Section 610.027, for a knowing violation in addition to other remedies provided by statute.  The trial court denied the civil penalty and attorney’s fees because, “this Court cannot on this record find that the Defendant City of Arnold either knowingly or purposefully violated the provisions of RSMo §§ 610.010-610.035.”  Plaintiffs appealed and the matter was transferred to the Missouri Supreme Court.

Knowing or Purposeful Violation of the Sunshine Law: In order to prove a “purposeful” violation under Section 610.027 a party must show that the defendant purposefully violated Section 610.010 to 610.026, which the Court has defined (based upon an earlier decision) as acting with a conscious design, intent, or plan to violate the law with awareness of the probable consequences.  A “… knowing violation requires proof that the public governmental body had actual knowledge that its conduct violated a statutory provision.”  There is no strict liability for being wrong about whether or not a record is open under the sunshine law.

The Supreme Court deferred to the trial court finding that the city’s failure to disclose a particular investigative internal affairs report was neither knowing nor purposeful.  It was up to the trial court to weigh the evidence and resolve the factual question whether or not the City’s conduct fell within the definitions of knowing or purposeful violations; therefore, the Missouri Supreme Court affirmed the Judgment.  Laut v. City of Arnold, (SC95307, 6/28/16)

Comment Howard: This decision is a major victory for local government because it takes away financial incentives to pursue similar lawsuits.  The City could have easily lost this suit if the trial court used its finding that the City’s “contention that the Internal Affairs report is in whole, or in part, a personnel record is wholly inaccurate” as proof that the City knowingly violated the law.

Preaching Minister Lacked Standing to Pursue Civil Rights Claim Because Claims Were Hypothetical

14034-illustration-of-a-four-leaf-clover-pvThe Irish Fair of Minnesota (IFM) is a private nonprofit organization, which organizes the annual Irish Fair, a three day event, celebrating Irish culture.  The fair takes place at Harriet Island Regional Park (Harriet Island), a public park in St. Paul, Minnesota.  IFM obtains permits from the city allowing it to host the fair, which is open to the public free of charge.  Harriet Island remains a public park during the fair.

The City’s administrative regulations governing permits for the use of Harriet Island require a security plan to be submitted sixty days before an event.  St. Paul patrol commander Patricia Englund drafted the security plan for the 2014 Irish Fair, which was implemented by off duty City police officers.  The plan contained a list of “prohibited items” which included signs.  In addition, IFM’s policies and procedures limited solicitation by vendors and prohibited the distribution of “merchandise, promotional items or materials” at the fair.

Miller an evangelical Christian planned to share his religious views at the 2014 Irish Fair by carrying signs, distributing literature, open air preaching, and initiating conversations with passersby.  On August 9, 2014, he and a few friends met outside the fair entrance, carrying signs and planning to express their shared religious views.  Before they entered the fairgrounds they were approached by an unidentified police officer and commander Englund.  One of Miller’s friends videotaped the following exchange.

Englund told the group that Harriet Island was IFM’s property during the fair, that its permit allowed it to “make the rules for the property,” and that their “signage, all that stuff, it’s just not welcome.”  Miller asked her whether she would arrest him if he displayed a banner on the fairgrounds, and she responded that she would confiscate it until after the fair.  He then asked Englund if she would arrest him if he distributed religious literature, and she told him that she would “consult with [IFM] to see what their preference was.”  He also asked if Englund would arrest him if he started to open air preach, and she replied that she had not yet decided.  Miller told Englund that her position “wouldn’t hold up in court,” and the group left to discuss how to proceed.  They eventually departed without attempting to enter the fairgrounds.

Miller’s attorney later wrote a letter to City officials, asserting that Englund had violated Miller’s First Amendment rights and demanding nominal damages, attorney fees, and written assurance that the city would not prohibit Miller’s religious expression at future Irish Fairs.  The City denied any wrongdoing, but it acknowledged that Miller could engage in protected speech and confirmed that it would ensure compliance with the law during future fairs.

Not satisfied with this response, Miller filed a § 1983 suit against the City, its police chief, and Englund in their official and individual capacities.  His complaint alleged violations of his First Amendment and due process rights and requested nominal damages, attorney fees, and declaratory and injunctive relief.  Specifically, Miller alleged that based on his conversation with Englund, he had concluded that IFM’s permit allowed it to exercise “proprietary control” over speech at the 2014 Irish Fair, thereby facilitating an unconstitutional “heckler’s veto” barring his religious speech.

Miller filed a motion for a preliminary injunction in federal district court to enjoin similar abridgements of his religious expression at future Irish Fairs, which after a hearing, was denied and dismissed for lack of jurisdiction concluding that Miller lacked standing to pursue his claims.  The trial court reasoned that Miller’s expectations about how Englund may have responded to his religious speech were based on her answers to “hypothetical questions,” and did not demonstrate a specific present harm because she never took any “overt action” to prevent his religious expression.  The court further concluded that Miller had not shown a threat of specific future harm at subsequent Irish Fairs, because the City had assured Miller that he could engage in protected speech at those fairs.  Miller appealed to the Eighth Circuit.

Eighth Circuit – Standing: To demonstrate standing, a party must allege an “injury in fact, causation, and repressibility.”   A party may allege injury in fact “by showing that its First Amendment rights have been chilled by harm to reputation or threat of criminal prosecution.”  That party “must present more than allegations of a subjective chill,” however, and must allege a “specific present objective harm or a threat of specific future harm” to establish standing.  With respect to the City, Commander Englund, and the police chief, Miller failed to allege any facts that showed policymaking officials had notice of or authorized the conduct of Englund.  Miller’s petition did not allege any facts that Englund had responsibility for establishing final government policy respecting the activities in the security plan nor did Miller allege any facts that a policy maker  of the City was responsible; therefore, the City and the police chief were dismissed from the  suit.

Individual Liability of Englund: Englund was sued individually and had individual liability with respect to her overstepping her authority and misusing using power. “England allegedly threatened to confiscate any banners that Miller displayed, creating a concrete threat of injury regardless of whether she also threatened to arrest him”  Therefore, Miller had standing to pursue his claims against Commander Englund.  Miller v. City of St. Paul, (8th Circuit, 15-2885, 5/23/16)

Comment Howard: Miller failed to exercise his rights by not entering the fair property with his signs and making speeches as well as other remarks protected by the First Amendment; thereby making his claims hypothetical  (no case or controversy), except for the actions of Commander Englund, which were  determined as individual action,  not as a City official.  The reality was that the City’s fingerprints are all over this process starting with the drafting of the rules governing the issue of permits; the actual issuance of permits; approval of the security plan and drafting of the security plan for IMF; and enforcement of the approved security plan by off-duty officers.  In addition, the City seemed to have delegated approval or disapproval to IMF with respect to enforcement, thereby constituting  a “hecklers veto.” I would suggest curtailing the City’s involvement to bare bones, required activities.  Considering how commonplace the use of city property is for fairs and other events you may want to look at how to provide a better structure governing this process.

Inciting a Riot and a Major Lawsuit

megaphone-clip-art-3To show how nasty these demonstrations can get you may want to look at Bible Believers v. Wayne County, (6th Circuit, 13–1635, 10/28/15).  The Wayne County case involved Christian fundamentalist attending the Arab International Festival, a Muslim festival celebrating Arab heritage and culture, which attracts over 500,000 people.  Christian fundamentalist decided to exercise their First Amendment rights to provoke Muslims by hurling insults at Muslims while carrying a pig’s head on a spike.  It is clear from the record that all of this was intended to provoke Muslims into attacking the Christians which would require the police to intervene.  As a result, major litigation ensued showing numerous facets of how these cases can become very expensive and complicated.  Most local governmental agencies have issues with fairs and events that involve permitting and protection of persons attending the event, including demonstrators who exercise their right of free speech.  Now is the time to review city policy before you’re faced with a crisis.  Bible Believers Wayne v. Wayne County, (6th Circuit, 13-1635, 10/28/15)


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